Undignified

The Supreme Court holds that life imprisonment without parole is unconstitutional. Its reasons are unconvincing.

In R v Bissonnette, 2022 SCC 23, the Supreme Court unanimously finds unconstitutional the provision of the Criminal Code that, in effect, allowed persons found guilty of multiple murders to be sentenced to life imprisonment without parole. The Court holds that the denial of a chance at release to all those on whom such sentences are imposed makes their imposition cruel and unusual, regardless of the nature of the crimes leading to it, and so contrary to section 12 of the Canadian Charter of Rights and Freedoms. In my view, the Supreme Court is wrong.

The case concerns a man who, executing a premeditated plan, entered a mosque “and, armed with a semi-automatic rifle and a pistol, opened fire on the worshippers. In less than two minutes, he caused the death of six innocent people” [11] and injured others. The prosecution sought to have him sentenced to serve the mandatory periods of parole ineligibility for each of the murders consecutively, amounting to a total of 150 years. But the Superior Court and the Court of Appeal both found that doing so would be unconstitutional. The former re-wrote the law to impose a 40-years ineligibility period. The latter simply struck it down and imposed the default sentence for a first-degree murder, life imprisonment and parole ineligibility for 25 years.


Writing for the Court, the Chief Justice draws on its recent decisions in Quebec (Attorney General) v 9147‑0732 Québec inc, 2020 SCC 32 and Ward v Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, to hold that section 12 of the Charter protects human dignity, which “evokes the idea that every person has intrinsic worth and is therefore entitled to respect”. [59] A punishment may contravene section 12 in two distinct ways. The more familiar one, which is involved in cases on mandatory minimum sentences that make up the bulk of section 12 jurisprudence, involves punishment that is grossly disproportionate to the particular offence for which it is imposed. To decide whether a given punishment is contrary to section 12 on this basis, the court must consider the offence. But there is a separate and logically prior category of section 12 breaches. It concerns punishments that are “intrinsically incompatible with human dignity”. [60] Here, the question of disproportionality does not arise at all; the punishment is simply not one that may imposed, no matter the offence. This category is “narrow” [64] but its contents “will necessarily evolve” along with “society’s standards of decency”. [65]

A punishment that belongs to this category “could never be imposed in a manner consonant with human dignity in the Canadian criminal context” because it “is, by its very nature, degrading or dehumanizing”, taking into account its “effects on all offenders on whom it is imposed”. [67] The Chief Justice adds that “the courts must be cautious and deferential” [70] before concluding that a punishment chosen by Parliament is of such a nature. However, once they reach this conclusion, because the imposition of such punishment is categorically forbidden, it can no more be discretionary than automatic, and it will not be mitigated by the existence of a prerogative power of mercy.

With this framework in mind, the Chief Justice considers whether effective life imprisonment without parole, which is what a parole ineligibility period of 50, let alone 75 or more years amounts to, falls into the category of punishments that “degrading or dehumanizing” by nature. In his view it is. There seem to be two somewhat distinct though no doubt mutually supportive reasons why this is so. On the one hand, such a punishment denies the important of rehabilitation as a part of the sentencing process. On the other, it is especially harsh on those subject to it.

On the issue of rehabilitation, the Chief Justice argues that life imprisonment without parole is incompatible with human dignity because “it presupposes at the time of its imposition, in a definitive and irreversible way, that the offender is beyond redemption and lacks the moral autonomy needed for rehabilitation”. [81] Rehabilitation is inextricably linked to human dignity, and “negat[ing] the objective of rehabilitation from the time of sentencing” “shakes the very foundations of Canadian criminal law”. [84] Even if rehabilitation seems unlikely, “[o]ffenders who are by chance able to rehabilitate themselves must have access to a sentence review mechanism after having served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. [85] Rehabilitation can take the back seat to denunciation and deterrence, but not left by the wayside, as it were. The Chief Justice adds that “the objectives of denunciation and deterrence … lose all of their functional value” after a point, “especially when the sentence far exceeds human life expectancy”, which “does nothing more than bring the administration of justice into disrepute and undermine public confidence in the rationality and fairness of the criminal justice system”. [94]

As for the harshness of life sentences without parole, the Chief Justice quotes descriptions of this sort of punishment as tantamount to a death sentence and writes that “[o]nce behind prison walls, the offender is doomed to remain there until death regardless of any efforts at rehabilitation, despite the devastating effects that this causes”, [82] such as “the feeling of leading a monotonous, futile existence in isolation from their loved ones and from the outside world”, [97] which can even lead some to suicide. But the Chief Justice is clear that this does not foreclose each and every sentence that would have the effect of “dooming” the offender to remain in prison until death: “an elderly offender who is convicted of first degree murder will … have little or no hope of getting out of prison”. [86] This is nonetheless acceptable “since it is within the purview of Parliament to sanction the most heinous crime with a sentence that sufficiently denounces the gravity of the offence”. [86] What matters is that the existing 25-year parole ineligibility period does not “depriv[e] every offender of any possibility of parole from the outset”. [86]

The Chief Justice then considers comparative materials, reviewing the laws and some case law from a number of countries, as well as some international jurisdictions. I will not say much about this to avoid overburdening this post, though the Chief Justice’s comments about the way in which such materials can and cannot be used, which echo those of the majority in Québec Inc, are worth considering. I will note, however, that the most pertinent comparative source of them all, the sentencing judgment in the New Zealand case of  R v Tarrant, [2020] NZHC 2192, about which I have written here, is simply ignored. This isn’t entirely the Chief Justice’s fault, since, so far as I can tell, the factums for the prosecution and the Attorneys-General of Canada, Québec, and Ontario also fail to mention it. Yet I find the omission striking, and culpable on the part of both the lawyers and the Supreme Court.

Finally, having found a breach of section 12 of the Charter, and in the absence of any attempt by the government to justify it, the Chief Justice considers the remedy to grant. I will not address this issue here, but stay tuned ― there will be more on it on the blog in the days or weeks ahead.


The Chief Justice’s opinion does not persuade me. For one thing, it sits uneasily with precedent. The Chief Justice duly quotes his predecessor’s judgment for the unanimous Supreme Court in R v Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 SCR 180, to the effect that sentencing principles, “do not have constitutional status. Parliament is entitled to modify and abrogate them as it sees fit, subject only to s 12 of the Charter“. [71] This includes both the principle of proportionality and “other sentencing principles and objectives” [Bissonnette, 53] That would seem to include rehabilitation, which the Chief Justice enumerated in the discussion sentencing principles that precedes this passage. And yet it follows from the rest of his judgment that rehabilitation is in fact constitutionally protected. It has a special relationship with human dignity, and cannot be excluded, contrary to the suggestion in Safarzadeh-Markhali, which, however, is not overruled or indeed even discussed at this point in the Chief Justice’s reasons. This is a muddle, which is not helped by the Chief Justice’s disclaimer of any “intent … to have the objective of rehabilitation prevail over all the others”. [88] If rehabilitation, alone among the sentencing objectives and principles ― even proportionality ― is constitutionally entrenched, then it is indeed put on a different plane.

The Chief Justice might think that his disclaimer holds up because, as we have seen, he insists that rehabilitation only needs to be available to those offenders who have “served a period of incarceration that is sufficiently long to denounce the gravity of their offence”. But he does not consider whether ― and, despite his professed commitment to deference, does not consider that Parliament may have concluded that ― in some cases, “no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the offenders] to account for the harm [they] have done to the community [or] denounce [their] crimes”. [Tarrant, 179] If that is so, then the same reasons that prevent rehabilitation from, say, abridging the sentences of elderly murders ought to prevent it from standing in the way of life imprisonment without parole. But it does so stand, because of its alleged special connection with dignity.  

Note that dignity itself is a judicial add-on to section 12 of the Charter; it’s no apparent part of the provision. As Maxime St-Hilaire and I pointed out in our comment on the first instance judgment in this case

the Supreme Court struggled for the better part of a decade to integrate human dignity into its equality jurisprudence, and gave up ― recognizing in R v Kapp, 2008 SCC 41 [2008] 2 SCR 483 that “human dignity is an abstract and subjective notion”, “confusing and difficult to apply”. [22] 

Something, I suppose, has changed, though the Chief Justice no more bothers to tell us why Kapp was wrong than he does explaining his apparent departure from Safarzadeh-Markhali. And note, moreover, that the alleged violation of human dignity that results from life imprisonment without parole is also the fruit of a judicial say-so. The Chief Justice asserts that such a sentence amounts to denial of an offender’s capacity to rehabilitate him- or herself. But it is at least just as ― in my view more ― plausible to see it as Justice Mander did in Tarrant: as expressing the view that nothing less will adequately denounce the crime. The offender may repent it; he or she may become a saint; but still denunciation will demand nothing less than continuing imprisonment. This is not am implausible view ― again, a thoughtful judgment of the New Zealand High Court has taken it ― and the Chief Justice never confronts, let alone refutes, it.

Even if you disagree with me on this, it remains the case that the Chief Justice’s reasons suffer from a serious logical flaw on their own dignitarian terms. Again, he accepts that some, perhaps a not inconsiderable number of, people will be imprisoned without any realistic prospect of being able to apply for parole, as a consequence of their age at sentencing and the duration of a fit sentence (or indeed a mandatory ― but constitutional ― one). He claims that this acceptable because such a sentence “does not exceed constitutional limits by depriving every offender of any possibility of parole from the outset”. [86; emphasis added] But that’s not how human dignity works. Dignity, if it means anything at all, is personal. Elsewhere, the Chief Justice shows he understands this, for instance when he writes that “rehabilitation is intimately linked to human dignity in that it reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society”. [83; emphasis added] In other words, because we are separate and distinct individuals, your dignity is not upheld if I’m being treated in accordance with dignitarian requirements. Yet that is exactly what the Chief Justice’s approach presupposes. Because some people get a chance at parole, those who don’t are treated with dignity. It’s a dodge, and a very clumsy one.

Finally, although I do not think that the court’s role is “to weigh fundamental values in our society”, [2] I agree that the courts do not operate in a moral vacuum. Yet they should not seek to fill this vacuum with what Professor St-Hilaire, in our comment on the Court of Appeal’s decision in this case, and I have described as “abstract, and ultimately soulless, humanitarianism”. Sadly, this is exactly what the Supreme Court is doing here. It is striking that almost nothing about the crime that led to this case, beyond describing it as an “unspeakable horror” [1] behind which were “hatred, racism, ignorance and Islamophobia”. [10] Perhaps I being unfair here, but to me this sounds like empty slogans or, to repeat, soulless humanitarianism. By contrast, the Chief Justice’s description of the suffering of those condemned to life imprisonment without parole, which I partly quote above, is specific and vivid. I do not suppose that the Chief Justice is really more moved by this suffering than by that of the victims of the offender here. But, in his otherwise commendable determination to reject vengeance and uphold the rights of the justly reviled, he writes as if he were.


To be clear, rejecting pure vengeance as the basis of sentencing policy is right. So is the empowering the courts to check Parliament’s excesses in this realm. The politicians calling for the section 12 of the Charter to be overridden at the next opportunity are wrong, because they are opening the door to abuse and casual disregard of the rights it protects. But that does not mean that the Supreme Court is necessarily right when it protects these rights, and it isn’t right here. Bissonnette is legally muddled, logically flawed, and morally blinkered. It is not a dignified judicial performance.

Not as Advertised

Legislative debates leading to Saskatchewan’s use of the notwithstanding clause show little interest in constitutional rights

There are two main views out there about what section 33 of the Canadian Charter of Rights and Freedoms, a.k.a. the notwithstanding clause, does, descriptively speaking. One is that it is a means by which legislatures can free themselves from constitutional constraint to effectuate their own policy preferences. The other is that, far from being an escape hatch from the constitution, section 33 allows legislatures to give effect to their own considered views of what the constitution requires. The majority in the recent decision in Toronto (City) v Ontario (Attorney General), 2021 SCC 34 (on which I commented here) recently endorsed the latter view, as defended by Dwight Newman. (An early version of Professor Newman’s chapter making this case is available on SSRN.)

The defenders of this view, including Professor Newman, hold up Saskatchewan’s use of its section 33 powers a few years ago as exemplary in this regard. Geoffrey Sigalet and Ben Woodfinden have written that it was “[p]erhaps the best illustration” of what they had in mind. The Saskatchewan legislature enacted the School Choice Protection Act, 2018 in response to the Court of Queen’s Bench decision in Good Spirit School Division No. 204 v Christ the Teacher Roman Catholic Separate School Division No. 212, 2017 SKQB 109, which declared unconstitutional the funding of Catholic schools for educating non-Catholic students but not of other religious or secular private schools. (I wrote about that decision here. It was later reversed on appeal in Saskatchewan v Good Spirit School Division No. 204, 2020 SKCA 34. ) The Court of Queen’s Bench found that preferential funding of Catholic schools infringed the principle of state neutrality and thus both the freedom of religion and equality rights protected respectively by sections 2(a) and 15(1) of the Charter.

As part of a broader research project looking at whether legislatures do indeed put forward their own interpretations of the constitution when they invoke section 33 of the Charter, I have read the debates about Bill 89, which became the School Choice Protection Act, in the Saskatchewan legislature. In light of the importance that this particular law has assumed in the notwithstanding clause discussion, I thought it would be worthwhile to share my account of these debates, followed by some comments, without waiting complete the entire project (which I am due to present at the Legacies of Patriation Conference this coming April).


Bill 89 was introduced in the Legislative Assembly on November 8, 2017—almost seven months after Good Spirit was decided. A week later, the then-Minister of Education launched the second reading debate with a speech that occupies all of six paragraphs in the Hansard transcript. The Minister acknowledged that the Bill was “in response to the Court of Queen’s Bench … decision” and referred to the Court’s finding that the state’s duty of religious neutrality, and hence the Charter’s religious liberty and equality provisions had been infringed. (2927) However, the Minister asserted that the province’s “funding model … does not discriminate based on religious affiliation”. (2927) The Minister did not explain why she disagreed with the court; nor did she make any other argument about freedom of religion or equality, beyond this one sentence.

Rather, she insisted that “[h]aving to wait for a decision on the appeal could leave parents and students with a great deal of uncertainty about the future, not knowing if they would continue to be funded to attend a separate school”. (2928) As a result, said the Minister, “[i]t is important to invoke the notwithstanding clause now in order to provide certainty to parents and to students so that they can be assured that they will continue to be funded to attend their school without having to wait for the outcome of an appeal”. (2928) This would be the entirety of the contribution the government side of the Assembly would make to the second reading debate.

That debate went on until May 2018, albeit at a desultory pace (on the last day, one of the opposition members complained that “[w]e haven’t seen this bill up too often on the order paper this session and there are a lot of outstanding questions here that do remain outstanding.” (4222)) A number of opposition members spoke, most of them acknowledging the potential for disruption if the Good Spirit judgment were allowed to enter into force. For one, indeed, “there’s no question that, unchallenged, that [sic] this ruling would make fundamental changes to education and classrooms, not only in Saskatchewan but the entire country”. (3173) They also repeatedly endorsed resort to section 33 in some cases, at least as a last resort, one invoking Alan Blakeney in doing so. (3259-60)

However, opposition members argued the government should not have relied on its section 33 powers before the appeals were exhausted. In the words of the member who spoke immediately after the minister, “[w]hile the appeal is being considered, there is no legitimate need to jump to the notwithstanding clause”. (2928) Another darkly warned of “the unintended consequences of using the notwithstanding clause at this point”, which “could be huge”. (3119) However, the member did not specify what these huge unintended consequences might be. Beyond voicing these concerns with process and timing, the opposition members did not add to the Assembly’s collective consideration of the Charter, despite occasional calls on “every member of this House to look through this court decision, to read through the findings”. (3173) Instead, they took advantage of the “debate” to voice recriminations about the government’s funding and management of Saskatchewan’s schools—an issue that is not obviously germane to the constitutional issues Bill 89 raised.

The second reading debate was concluded on May 7, 2018, and the bill was committed to the Standing Committee on Human Services. The committee met on May 23, for an hour and a half. Much of this time was taken up by exchanges between the (new) Minister of Education, assisted by a Ministry of Justice lawyer, and a single member from the opposition. It is worth noting that the Committee Chair warned the members that the Minister may have felt constrained by the ongoing appeals process, although it is not obvious in what respects, if at all, the Minister was really prevented from making his views clear, or for that matter why he should have felt so constrained.

The Minister reiterated his predecessor’s argument that Bill 89 was a response to the Good Spirit decision and that “[i]nvoking the notwithstanding clause ensures that the government can continue to fund school divisions based on the status quo funding model, which … does not distinguish based on religious affiliation”. (733) This would “ensure that parents continue to have a choice as to where they wanted to send their children, … [if] non-Catholic parents wanted to continue to send their children to Catholic schools and have government funding for those children attending those schools” (734)―something he would later describe as “protecting the rights of non-Catholic parents”. (737) The Minister further asserted that “in terms of using it to protect the rights of individuals … it’s a fair use of the [notwithstanding] clause. But from that perspective, I think that any time that you’re using that particular clause, I think you want to be very cautious and very careful about that.” (737) In response to an opposition member’s question, he also noted that, except with respect to the funding of non-Catholic students at Catholic schools, the existing constraints on discrimination in school admissions would not be affected by Bill 89. (740) The Minister pointed to the uncertainty with which the parents were faced, a concern the opposition member shared, and claimed that this concern could not have been addressed in any other way. (738) Yet he later admitted that “whether there are other tools that can be implemented” or what they might be was something he was “not prepared to talk about”, “because [he] ha[d]n’t given a whole bunch of thought to them”. (742) It would, rather, be “for the parties to start giving some fairly serious thought to what this all looks like at the end of the day”. (742) There was no debate on the single amendment approved by the select committee and no Third Reading debate either. Bill 89 received Royal Assent on May 30, 2018.


To be blunt, if this is supposed to be a good advertisement for legislative engagement with the constitution, the product is not an impressive one. A key proponent of section 33, Peter Lougheed, who was Alberta’s Premier at the time of Patriation, would later argue that, in deciding to invoke the notwithstanding clause “a legislature should consider the importance of the right involved, the objective of the stricken legislation, the availability of other, less intrusive, means of reaching the same policy objective, and a host of other issues”. (16) Professor Newman has similarly lofty expectations. But there is precious little of this in evidence in the Bill 89 debates.

The importance of the right involved? No one, neither the Ministers nor opposition members, engage with freedom of religion, equality, and the state’s duty of neutrality at all, unless we want to count the Ministers’ bald assertions that the funding system the court has declared to be discriminatory does not discriminate. It is fair to say that politicians should not be held to the same standards of reasoning as judges, but surely we’d expect to see something, anything, by of an explanation. Nor does any of the speakers question why the funding model was set up the way it was, with a privilege for Catholic schools that was denied to others. Nor, evidently ― and despite the Minister’s initial, quickly self-contradicted, assertion to the contrary ―, has anyone given serious thought to alternatives to this scheme and to using the notwithstanding clause to keep it in existence, although ― as I wrote here shortly after the decision was rendered, an obvious alternative does exist: the legislature could fund non-Catholic minority schools on equal terms with the Catholic ones.

The only relevant concern that was voiced during these proceedings was that with ensuring stability for non-Catholic students in Catholic schools and their parents. This is, obviously an issue that deserved a lot of attention. Yet paradoxically ― and, certainly by the time of the committee discussion, everyone was aware of this! ― invoking section 33 was only a short-term fix, not a permanent solution to this difficulty. Yet no thought was given either to a system of equal funding for all schools, which would have solved the constitutional problem, or to a system of gradual transition out of the arrangement the Court of Queen’s Bench had found to be unconstitutional, at least for those children who were only starting their schooling.

One final thing to note is that, quite apart from the quality of the legislature’s consideration of the issues, the quantity is rather lacking. In particular, I find the lack of participation by the government side of the legislature remarkable, and not in a good way. The only remotely serious discussion ― and even this is a generous assessment ― of the rights issues happened in committee, where the Minister was present in his executive capacity, not as a legislator. The government had a strong majority in the legislature ― but it was largely a silent one. In a very real way, the legislature did not offer any views at all on Bill 89.


In short, the Saskatchewan legislature did not put forward any alternative interpretation of the Charter rights involved ― it paid no mind to them at all. Its consideration of justified limitations on these rights was limited. The solution it adopted was not a permanent one. In my respectful view, those who hold up this episode as a proof of concept for the claim that legislatures can use section 33 to give effect not to brute majoritarian preferences but to constitutional judgments are wrong to do so. Perhaps, as I consider other recent episodes where section 33 was used or where its use was serious contemplated, I will find better support for their theory. But this ain’t it.

The Law of Bonkerstown

Does the constitution mandate the soft bigotry of low expectations?

In a much-noticed decision, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386, the Ontario Divisional Court has declared unconstitutional a standardized test would-be teachers were required to take in Ontario, as well as provisions of the Ontario College of Teachers Act and regulations made under it that required the test to be administered. The Court found that the test infringed the equality rights of “racialized” candidates under section 15 of the Canadian Charter of Rights and Freedoms, because they (or at least some groups among them) had significantly lower pass rates than white ones. The decision is perverse in itself, as well as showing the perversity of section 15 jurisprudence.

The case can be summarised quite simply. In the face of concerns about falling student performance on mathematics tests, the Ontario legislature introduced a requirement that aspiring teachers themselves pass a standardized test. Regulations were drawn up and a test designed, drawing on a “bank of math questions used for Grade 3, 6, and 9 assessments” for its substantive part and “on Ministry policy documents for the pedagogy component”. [24] Alas, despite two reviews “for bias and sensitivity to equity issues” [25] the results of a trial run and of the first official iteration of the test showed considerable disparities between ethnic and linguistic categories of test-takers. A group of would-be teachers, supported, it is worth noting, by the teachers’ union, challenged the test on the basis that these disparities amounted to unconstitutional discrimination.

In a unanimous opinion by Justices Backhouse and Nishikawa, the Divisional Court agrees. Following Fraser v Canada (Attorney General), 2020 SCC 28, it explains that section 15 rights are limited whenever state action impacts a group defined by a trait it names or an analogous one more severely than a relevantly comparable group, and this disparity “has the effect of reinforcing, exacerbating or perpetuating disadvantage”. [56] Crucially, there is no need for a demonstrated causal connection between the disparity and the disadvantaged group’s characteristics, and no need for all of the disadvantaged group’s members to be similarly affected.

This test is met here by the statistical showing that some non-white groups have done noticeably worse than white test-takers ― a result that the Court ties to the fact that “[t]he education system in Ontario has historically imposed disadvantages on Black and Indigenous students” [64] and that “Black and Indigenous students tend to be over-represented in less challenging, basic and general level courses, and under-represented in advanced courses”. [65] Such students, the Court says, would do better if there were more teachers who shared their background, but there are not ― on the contrary, “[t]wenty-six percent of Ontario students are racialized. However, only thirteen percent of teachers are racialized”. [67] In addition to the statistics, the Court discusses what it describes as “qualitative evidence”, in the form of an affidavit by one candidate, of African origin, who found taking the test difficult. One reason for this was that the test “is taken on a computer”, while the candidate “ha[d] never used a computer or calculator for math and ha[d] never taken a computer-based math test” [89] ― though this candidate was actually successful on the math part of the test, and only struggled with the pedagogy one.

The Court then asks whether this limitation of equality rights is justified in a free and democratic society. It accepts the government’s submission that the test is imposed to improve student performance and is a rational way to do so. Furthermore, the issue involves balancing would-be teachers’ rights and the needs of the students, which points to “a highly deferential approach” [132] to deciding whether the test is a minimally impairing way of achieving the government’s purposes. Yet the Court still finds that the test is not justified. This is, crucially, because the government would do as well ― or, the Court strongly suggests, better ― if the test were replaced with a requirement that aspiring teachers be required to take a math course as part of their mandatory education. The Court’s key finding is that this

would be significantly less impairing of equality rights. There is a plethora of evidence in the record highlighting the disproportionate impacts of standardized testing based on race … In contrast, there is no evidence to suggest that these negative diversity impacts would exist in the context of a mandatory math course (i.e. that racialized teacher candidates might disproportionately fail these math courses), and we do not think such an inference can be made on the basis of logic or common sense. [142]


This way lies madness. The Divisional Court is, of course, bound by the Supreme Court’s test at the section 15 stage of the analysis, and for the most part it should not be faulted for the way in which it applies it. What its application of the test makes clear, though, is that this test is, to use a technical term, bonkers. It compels the conclusion that constitutional rights are limited ― or, as the Court puts it, prima facie breached ― by what could, for all we know, be statistical artefacts. (One point that arises in the Court’s discussion is whether data from one trial and one official test are sufficient to support its conclusions. There is a logic to the Court’s response that “a claimant group must wait years before it is in a position to challenge a regulation that it alleges is discriminatory”, [85] but that’s because we are used to thinking of constitutional violations that are more concrete and immediate than what spreadsheets capture.) References to historical discrimination and current statistical disparities are only for colour; they do are not meant to have any actual explanatory power. They cannot, for instance, account for the fact that, on the trial edition of the test, the disparity between candidates of “Caribbean” and “African” backgrounds was almost as great as that between “Caribbean” and “European” candidates. A potential constitutional violation is made out by a showing no one needs to and, quite possibly, can explain. This is a surrender to, indeed an embrace of, irrationality masquerading legal doctrine.

Meanwhile, the Divisional Court’s approach to section 1 is perverse in its own right, though it is also consistent with the underlying logic of the Supreme Court’s approach. The Court says that the province should rely on courses in mathematics rather than tests to ensure that teachers are competent, because there is no evidence of disparate effect of a course requirement. For one thing, note that the Court doesn’t say there is evidence of equal outcomes. It’s just that nobody seems to have studied the matter. And consider: if the course uses rigorous assessment of the same kinds of skills that the test measured, why would the outcomes be different? Alternatively, how will we know that the reason for the course requirement not yielding disparate outcomes won’t be a lack of rigorous assessment? I’ve taught enough at universities to know that this is not exactly a far-fetched hypothesis.

Here is the desperately sad thing about the Court’s reasoning. The Court notes that one problem with the relative paucity of minority teachers is that, at least in the United States, “non-Black teachers had significantly lower expectations of educational attainment for Black students than Black teachers”. [68] Yet its ruling manifests and perpetuates exactly this sort of soft bigotry of low expectations. We can’t expect, it says, “racialized” candidates to succeed on a standardized test twice vetted for sensitivity and bias. The “qualitative evidence” on which the Court relies is telling in this regard. It is, apparently, too much to ask of a teacher, or at any rate, on the Court’s logical, a “racialized” teacher, in the 21st century to be able to do a test on a computer. We shouldn’t care that a future teacher cannot answer multiple-choice questions about pedagogy, because hey, he is “uniquely qualified to broaden students’ awareness and understanding of Franco-African culture and cross-cultural world views”. [91] This presumption that letting members of minority groups cut corners is the only way they can succeed is what disregards the constitutional mandate of equality ― not holding them to the same standard as everyone else.

And yes, of course, it’s not impossible that the standard is set in an insidiously biased way. Needless to say, a standard vetted, twice, for precisely this potential problem by people genuinely concerned about this possibility is unlikely to have this problem. Still, perhaps. But then it should be possible to demonstrate that this is so. As Justices Brown and Rowe say in their dissent in Fraser, one should not assume that a statistical disparity in outcomes between groups or a correlation between disadvantage and membership in a group equals causation:

where one is dealing with complex social and economic considerations … one can readily assume that there are many factors involved, some of which will give rise to causation while others will simply be the result of coincidence (that is, caused by independent factors). [180; emphasis in the original]

Let me end this part of the past by quoting Chad Williams, writing for Fair for All:

the fundamental assumption of critical race theory is that disparities between racial groups are in themselves evidence of racism. This assumption is faulty because it fails to allow or account for the numerous reasons other than racism that racial groups might have different outcomes. At the population level, these plausible reasons include age, geography, and, of course, culture. Many analysts of group differences are trapped in the false binary that these differences must result from either racism or genetic differences. However, Thomas Sowell and others have made compelling arguments about why this simply is not true. This is not to say that past disparate treatment has had no effect on current disparate outcomes, but it certainly cannot be the only cause for these disparities. Accordingly, a policy that begins from the faulty assumption that disparities equal racism is bound to fail as a bulwark against what actual racism still exists today.

This policy is the law the Supreme Court’s created in Fraser, and the Divisional Court’s decision in Candidates’ Council illustrates the tragic consequences it is bound to have.


Before addressing the question “and now what?”, let me point out two things about this case that I do not understand. One has to do with what exactly the Court is deciding. Beyond explaining that a recent amendment to the College of Teachers Act required the test to be set up and regulations under the Act gave effect to the requirement, the Court’s reasons focus entirely on the test. The evidence, such as it was, had to do with the results of different groups of candidates on the particular test they were administered, and the experience of some individual candidates. Yet the court not only invalidates the test, but also the statutory provision and the regulation pursuant to which it was created. It doesn’t at all explain why. Under the heading “What Is the Appropriate Remedy?” it simply states that “[a] declaration” to this effect “will issue”. [161] The province can’t create a new test even if thinks that it might come up with one that will not produce the disparities this one did. That doesn’t seem right to me, and the absence of any explanation does not speak well of the Court’s commitment to transparency and to judicial craft.

Relatedly, I do not understand the Court’s approach to the standard of review. The Court deals with it briskly, citing  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, for the proposition that “constitutional questions are reviewed on a standard of correctness” [50]. But that seems too quick. Vavilov makes a

distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit [Charter] rights … and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter. [57]

The former type of cases is not, ostensibly, decided on the correctness standard at all, but following the framework set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and refined in a number of subsequent cases. Only the latter attract the correctness standard. Co-blogger Mark Mancini has argued that this is incompatible with Vavilov‘s overall thrust, and so have I, but that’s how it is until the Supreme Court says otherwise. Now, as I’ve alluded to just above, Candidates’ Council seems to involve both types of issues. The design of the test is a discretionary administrative decision. It’s not prescribed by statute or regulation: regulation 3 of the Proficiency in Mathematics Regulations, made under the College of Teachers Act, simply provides that “[T]he Education Quality and Accountability Office shall develop English and French versions of a mathematics test”. The test, then, should in principle be assessed under the Doré framework, on a reasonableness standard. Meanwhile, the Regulations and the enabling section of the Act are obviously the kind of provision whose constitutionality falls to be addressed on the correctness standard under Vavilov.

Does that make sense? No, not really. I would even say, none at all. But that’s what Vavilov pretty clearly seems to require. It is puzzling that the Court does not even attempt to engage with its demands. This isn’t even a matter of fudging the law to get to a desired outcome ― as we have seen, the Court makes a show of being deferential while ostensibly applying the correctness standard, and strikes down the test anyway. It could easily have reached the same result under Doré. I suppose the absurdity of the Vavilov/Doré cohabitation was simply too much to deal with.


So what to do about this terrible decision? Unsurprisingly given both the Zeitgeist and the egregious nature of this decision, the n-word ― “notwithstanding” ― has been thrown around since the decision came out. More than on other occasions, I understand the impulse. But, as before, I remain of the view that it must be resisted. While using the “notwithstanding clause” to undo this particular decision may be a short-term fix, it is not a genuine solution to the underlying problem. The invocation of s 33 of the Charter will have to be renewed every five years. A legislature that takes a different view of either the substantive issues or indeed the propriety of using the notwithstanding clause itself need not do so. More importantly, using the notwithstanding clause to resurrect this particular policy does nothing to prevent other judgments, striking down other policies, from applying the same misbegotten principles as the Divisional Court applied here. Are the supporters of the notwithstanding clause saying that it should be used, René Lévesque-style, to insulate all law from judicial review? They’ve always been angry at me for suggesting that that that’s where their positions naturally led.

The immediate solution, of course, is for the province to appeal. One should hope that the Court of Appeal, and the Supreme Court if need be, will restore sanity, if only on the section 1 issue, on which Fraser does not control. Otherwise, the appropriate solution ― and it is probably well worth pursuing regardless of the outcome of the appeal ― is an amendment to section 15 of the Charter. At a minimum, it should endorse the dissenting position in Fraser, requiring a showing of causation for statistical disparities to be regarded as limiting equality rights. More radically, the amendment could excluding disparate impact discrimination from section 15’s scope. My tentative opinion is that this is the better, cleaner option ― but I am open to persuasion. Either way, an amendment is both a more permanent ― not to mention transparent and honest ― way of avoiding similar disasters in the future than using the notwithstanding clause to revive this particular policy, and a more modest one than a blanket invocation of the notwithstanding clause to prevent section 15 challenges at all would be.

Don’t Make Idiots into Martyrs

The Double Aspect view on why an Alberta judge was wrong to order that pandemic deniers promote the expert consensus

This post is co-written with Mark Mancini

In Alberta Health Services v Pawlowski, 2021 ABQB 813, a judge of the Alberta Court of Queen’s Bench sentenced a preacher opposed to anti-pandemic public health measures and his brother to steep fines for contempt of court. The defendants had ostentatiously breached court orders requiring them to comply with various public health requirements, and there is no question that they deserved punishment. But the remarkable thing about Justice Germain’s ruling, and the reason, we suspect, why it made the news, was an additional component of his order. “[W]hen … exercising [their] right of free speech and speaking against AHS Health Orders and AHS health recommendations, in a public gathering or public forum (including electronic social media)” the defendants

must indicate in [their] communications the following:

I am also aware that the views I am expressing to you on this occasion may not be views held by the majority of medical experts in Alberta. While I may disagree with them, I am obliged to inform you that the majority of medical experts favour social distancing, mask wearing, and avoiding large crowds to reduce the spread of COVID-19. Most medical experts also support participation in a vaccination program unless for a valid religious or medical reason you cannot be vaccinated. Vaccinations have been shown statistically to save lives and to reduce the severity of COVID-19 symptoms.

This order manifests a deeply disturbing, not to mention likely unconstitutional, disregard for freedom of expression. And Justice Germain’s judgment suffers from other deep flaws on its way to this untenable conclusion, which make his decision all the more troublesome.

We should start by saying that, on a personal level, we have very little sympathy for the defendants’ cause. While reasonable people can always debate the specific measures being taken by the authorities―even to combat a pandemic―there is nothing reasonable in denying the seriousness of the situation, or in opposing vaccinations, which are our only hope to get out of this mess. And while both of us have written with some sympathy about civil disobedience, as practiced by people such as David Thoreau and Martin Luther King, civil disobedience involves acceptance of punishment―not flagrant disregard of the court system.

But the court system, for its part, should not beclown itself, even when dealing with jackasses. Justice Germain, alas, sets the tone quickly. “Alberta”, he writes,

has been and is in its worst shape ever concurrently with these sanction hearings. It is not an overstatement that Pastor Artur Pawlowski and his brother Dawid Pawlowski have contributed to this ominous health situation by their defiance of the health rules and their public posturing, which encourages others to doubt the legitimacy of the pandemic and to disobey the AHS Health Orders designed to protect them. [5]

The idea that the defendants deserve punishment not only for breaking the rules and the court orders enforcing them (which, to repeat, they do), but also for what they say and for what others make of what they say runs through Justice Germain’s reasons and taints his decision. Much of the opinion concerns what the judge personally thinks of the conduct of the defendants. But whatever one’s personal views, a judge cannot justify a decision that forces someone to agree with a particular law. The decision, in this sense, is incompatible with a free society where people can be required to comply with the law, but not to support it, as a majority of the Supreme Court held in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269.

One example of Justice Germain letting his personal views get the better of his judicial duty is his indignation at the fact that the defendants present themselves as martyrs. He is especially upset because one of them has done so “on a speaking tour in the United States where he parlayed his title as a pastor and the fact that he had been arrested for holding a church service into a rally cry that attracted like-minded individuals”. [33] For Justice Germain,

It is disappointing that Pastor Pawlowski had to air his grievances about Alberta in another country. Leaders and statesmen don’t do that. During his sanction hearing, AHS played some trip reports in which Pastor Pawlowski oozes hubris, while relishing in his notoriety. He got to take a picture with a governor of a U.S. state. He is proud of what he asserts is the love of the U.S. people for him. Love he implies he is not feeling in Canada. [34]

In a free and democratic society, no citizen is legally required to be a patriot. Punishment for not loving one’s country in accordance with its authorities’ idea of what such love ought to look like is a hallmark of dictatorial regimes. It is distressing to see a Canadian judge failing to comprehend this.

In a slightly different vein, Justice Germain is also angry that Mr. Pawlowski’s “accuses the Court of being a ‘tool of the government’” and so “show[ing] no civic understanding of the independence of the Courts and their distance from the government”. [35] To the extent that this anger contributes to Justice Germain’s choice of punishment for the defendants, it comes perilously close to being a sanction to the old contempt by “scandalizing” the court―that is, by making statements tending to bring the court into disrepute or to undermine its authority. The Ontario Court of Appeal held that this offence was unconstitutional in R v Kopyto, 62 OR (2d) 449, all the way back in 1987.  

Next, Justice Germain observes that, even as “Pastor Pawlowski makes much virtue of his status in Canada as an immigrant from Poland”, he also “describes health authorities as Nazis”. [36] To the judge, “[i]t defies belief, that any immigrant from Poland (having studied the atrocities of the Nazis in that country) could identify a doctor of medicine trying to keep people alive as a Nazi”. [36] At human level, one might sympathize with Justice Germain, but coming from a judge as part of reasons for sentencing, the suggestion that an immigrant might be held to some kind of special standard due to his origins strikes us as troubling.

These personal views take centre stage in Justice German’s opinion. The law is forgotten; only briefly does Justice Germain seem to acknowledge the relevance of freedom of expression to the case before him―and in a way that shows that, in truth, he just doesn’t get it. He says that “Pastor Pawlowski is entitled to express views about the government, the Courts, and AHS, but he must do it in a respectful, hate-free way that does not breach AHS Health Orders”. [37] To be sure, freedom of expression doesn’t extend to breaching court orders. But nor does it have to be exercised in a “respectful, hate-free way” as a matter of law (though as a matter of morality, we usually hope the freedom of expression is exercised in this way). One might, of course, refer to the US Supreme Court’s well-known decision in Cohen v California, 403 US 15 (1971), the “fuck the draft” case, where Justice Harlan famously wrote that “one man’s vulgarity is another’s lyric”. (25) But, closer to 2021 Alberta in time as well as in jurisdiction, let us note Justice Miller’s opinion for the Court of Appeal for Ontario in Bracken v Town of Fort Erie, 2017 ONCA 668, where it was argued that a loud protest was tantamount to violence and hence unprotected by the Charter’s guarantee of the freedom of expression:

A person’s subjective feelings of disquiet, unease, and even fear, are not in themselves capable of ousting expression categorically from the protection of s. 2(b) [of the Charter].

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

Justice Germain insists that

Pastor Arthur Pawlowski, his brother Dawid Pawlowski, and others that I dealt with in the sanction hearings are on the wrong side of science, history, and common sense on this issue. The growing number of dead and dying in North America from COVID-19 infection cannot be ignored, nor defined as a false reality. [38]

This is true. But the consensus view of science, history, and common sense, even to the extent that it exists, as here, is not and must not be an official ideology that all citizens are required to endorse. For this reason, while Justice Germain’s sentencing the defendants to a fine and community work is justified, his further order quoted at the beginning of this post is not. In a free and democratic society, which is what the Charter says Canada is, citizens are not required to make themselves into instruments of government propaganda when they engage in political or religious speech. Nor are they required to confess to their own heterodoxy, as Justice Germain would have the defendants do. It is for others to make that showing against them.

We might understand what Justice Germain did if he had framed his opinion in traditional legal terms. But his findings on s. 2(b) of the Charter, such as they are, are couched in personal opinion and conjecture. He does not conduct any analysis about freedom of expression of the sort that we have come to expect from Canadian courts. Indeed, he does not refer to precents on freedom of expression either. When it comes to determining whether his order is justified under s. 1, the only way Justice Germain addresses proportionality is through a comparison of his remedy to an order of jail time. He says that “many reasonable individuals will view the sanctions that I impose to be more beneficial in repairing the harm Pastor Pawlowski and his brother did to society than a short period of jail that will perhaps martyr them in the eyes of their followers”. [43] Yet this is not the test. Our constitutional law, in order to afford speech protection, does not count how many “reasonable people” support a particular exercise of speech or a particular way of repressing it. Not to mention, this statement does not consider, at all, the severity of the impact on the defendants’ freedom of expression—no matter how distasteful we might find their message.

We should note that Canadian case law on the subject of compelled speech is relatively sparse and nowhere near as robust as one would wish it to be. While National Bank, to which we refer above, rightly described attempts to coerce support for existing laws as totalitarian, Slaight Communications v Davidson, [1989] 1 SCR 1038 upheld an arbitral order that an employer state certain facts, found by the arbitrator, in a letter of recommendation provided to a former employee. The majority distinguished National Bank on the basis that Slaight concerned compelled statements of fact, rather than of opinion.

Ostensibly the order given by Justice Germain is framed as a factual statement. There is thus at least an argument that it is valid under Slaight. But this matter is also different from that case―even assuming that it was correctly decided. Justice Germain’s order applies whenever the defendants are speaking on a broad swathe of issues of pressing public concern and, contrary to what was the case in Slaight, the defendants vigorously―if not at all reasonably―dispute the facts they are required to convey. Justice Germain’s order requires them to undermine their own messaging and so to expose themselves to public ridicule if they wish to speak at all.

Thus, even as he gets on his high horse about science, common sense, and the importance of respecting court orders, Justice Germain simply ignores the constitution which constrains his own powers. In denouncing the defendants’ quest for martyrdom and, seemingly, punishing them for their opinions, he is in fact making them into martyrs. Indeed, thanks to him, they are now martyrs for free speech rather than only for covidiocy. We hope that there is an appeal, and the Justice Germain’s decision is reversed. So long as it stands, it is a much more serious affront to the dignity of the Canadian judiciary than anything the defendants―whom we do not mean to excuse―have done.

And that, perhaps, is the important point. COVID-19 has challenged all Canadian institutions in different ways. The challenges have been significant. Courts specifically have been asked to rule  that, at times, public necessity outweighs personal freedoms. We believe COVID-19 presents a number of these situations quite starkly. But when courts must make this judgment, they should do so by predictably applying established doctrines, and in a way that gives due respect to the rights and freedoms at issue. When the judicial analysis is perfunctory, or advanced as part of a personal opinion, public belief in the courts as guarantors of a government of laws, not men, is understandably diminished. This should worry us.

Correct, but Wrong

Thoughts on the Supreme Court’s dismissal of the challenge to Ontario’s interference in the Toronto municipal elections

Last week, the Supreme Court handed down its judgment in Toronto (City) v Ontario (Attorney General), 2021 SCC 34, upholding a provincial statute cutting the number of wards and councillors in Toronto in the middle of a municipal election campaign. The Court divided 5-4, with Chief Justice Wagner and Justice Brown writing for the majority (also Justices Moldaver, Côté, and Rowe) and Justice Abella for the dissent (also Justices Karakatsanis, Martin, and Kasirer).

The majority gets the outcome right. As both co-blogger Mark Mancini and I have written here in response to the Superior Court’s decision in this case, the province was well within its rights to enact what was, by all accounts, a disruptive law of questionable usefulness. But the majority’s reasoning is underwhelming. It’s not bad on the first issue: that of an alleged violation of the freedom of expression. But it is just rubbish on the second: that of the constitutional principle of democracy. The majority’s attempt to synthesize and cabin the Supreme Court’s jurisprudence on unwritten principles is a complete failure.


The first issue is whether the reorganization of the Toronto city council after the beginning ― though well over two months before the end ― of the municipal election campaign was a limitation of the freedom of expression of the candidates who had started campaigning under the old system. The majority holds that it was not. As a result, it does not get to the question of whether a limitation would have been justified.

For the majority, the matter falls to be considered as a claim for the provision by the state of a particular platform for expression, rather than as a (more usual) claim that a person is being prevented from conveying their ideas to others. As the majority explains,

the City does not seek protection of electoral participants’ expression from restrictions tied to content or meaning … ; rather, it seeks a particular platform (being whatever council structure existed at the outset of the campaign) by which to channel, and around which to structure, that expression. [32]

In other words, this is a “positive” rather than a “negative” right claim. The majority reformulates the test for such a claim as whether it is

grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression? [25]

The majority adds that “substantial interference with freedom of expression requires “effective preclusion” of “meaningful expression”, which is “an exceedingly high bar that would be met only in extreme and rare cases”. [27] 

The City has not cleared this bar. The majority states that “the candidates and their supporters had 69 days — longer than most federal and provincial election campaigns — to re‑orient their messages and freely express themselves according to the new ward structure”, with “no restrictions on the content or meaning of the messages that participants could convey”. [37] There was a meaningful election campaign, albeit a different one than had originally been planned.

The majority also rejects the City’s alternative argument on freedom of expression, to the effect that it implies a guarantee of “effective representation” which the Supreme Court originally articulated in the context of section 3 of the Charter. This provision protects the right to vote in federal and provincial ― not municipal ― elections. For the majority, “[e]ffective representation is not a principle of s. 2(b), nor can the concept be imported wholesale from a different Charter right”.

The dissent, for its part, begins by stressing the disruptiveness of the reform imposed by the province, and the lack of justification for it ― indeed, the new electoral structure had been considered by the City itself, and rejected. It goes on to argue that

When a democratic election takes place in Canada, including a municipal election, freedom of expression protects the rights of candidates and voters to meaningfully express their views and engage in reciprocal political discourse on the path to voting day. … When the state enacts legislation that has the effect of destabilizing the opportunity for meaningful reciprocal discourse, it is enacting legislation that interferes with the Constitution. [115]

This is what the province has done here, as the dissent emphasizes by quoting at great length the statements of candidates impacted by the disruption.

The dissent also argues strenuously that the majority is wrong to see the dispute as being about the positive provision of a platform for expression, and so to apply a higher threshold of seriousness to the question of whether the freedom of expression has been infringed. Indeed, in its view

There is no reason to superimpose onto our constitutional structure the additional hurdle of dividing rights into positive and negative ones for analytic purposes. Dividing the rights “baby” in half is not Solomonic wisdom, it is a jurisprudential sleight-of-hand that promotes confusion rather than rights protection. [155]

The province has also failed to advance a justification. This means that the impugned law contravenes the Charter.

As noted above, I think that the majority is basically right, notably in treating the claim advanced by the city as being for the provision or maintenance of a specific set of arrangements within which expression is to be channelled. The freedom of expression is the ability to say things one thinks, and not to say things one doesn’t. It’s not a guarantee that what one says will be interesting or relevant to anyone. If a province goes dry tomorrow, a great deal of alcohol advertising will have been rendered pointless, as will a great deal of campaigning for moderate drinking, research into the health benefits of red wine, and what not. But prohibition will not infringe the Charter. (It will be abominable, but constitutional.) It is the same when a province renders pointless a great deal of campaigning for a municipal election. Stupid, but constitutional, as Justice Scalia used to say.

The dissent’s response to this would be, I think, that the context of an election is different, but that really just proves the majority’s point. The claim at issue is about a specific platform for expression. The dissent’s analogy with Greater Vancouver Transportation Authority v Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 SCR 295 also doesn’t work. That case was concerned with a ban on political advertisements on city buses, and the issue, as the majority explained, was not access to the platform in question ― that is, advertising on buses ― but a restriction on the content of what could be said on that platform. Here, the situation is exactly the opposite. The province hasn’t changed how it regulates the content of municipal election campaigns, but instead has shut down the old platform for expression and substituted for it a different one.

My objection to the Chief Justice’s and Justice Brown’s reasons has to do not with what they do, but with some of the things they say. They describe the threshold at which the “positive” freedom of expression is engaged as “an exceedingly high bar that would be met only in extreme and rare cases”. This may be tantamount to reading this aspect of the freedom out of the doctrine entirely ― but they also say that it has, in fact, some value. This language of “extreme and rare cases” isn’t necessary here, and I don’t think it provides useful guidance for the future; the words are too imprecise and subjective. The other troubling aspect of the majority’s reasons is its mention ― seemingly in passing, but I suspect that it is with at least a measure of approval ― of the fact that the Charter‘s guarantee of freedom of expression “has been interpreted so broadly that the framework has been criticized for setting too low a bar for establishing a … limitation”. [16] This has nothing to with this case, since that broad framework traditionally traced to Irwin Toy Ltd v Quebec (Attorney General), [1989] 1 SCR 927, doesn’t apply. The Supreme Court is already far too accepting of limitations on the freedom of expression, and its possible willingness to restrict the freedom’s scope bodes ill.


I turn now to the second issue, that of whether interference with an ongoing municipal election is an unconstitutional violation of the democratic principle. This principle, which the City suggested required the provision of “effective representation” in the municipal context, as well as in the cases governed by section 3 of the Charter, would serve as a limit on the legislature’s ability to enact laws in relation to “Municipal Institutions in the Province” pursuant to section 92(8) of the Constitution Act, 1867.

The majority is unimpressed. It says that unwritten principles such as democracy “are … part of the law of our Constitution, in the sense that they form part of the context and backdrop to the Constitution’s written terms”. [50] However,

because they are unwritten, their “full legal force” is realized not in supplementing the written text of our Constitution as “provisions of the Constitution” with which no law may be inconsistent and remain of “force or effect” under s. 52(1) of the Constitution Act, 1982. Unwritten constitutional principles are not “provisions of the Constitution”. [54]

They can serve two functions: on the one hand, they can be used as aids in interpreting constitutional text; on the other, they can fill textual gaps. What they cannot do, the majority says, is directly invalidate legislation. To hold otherwise would be to “trespass into legislative authority to amend the Constitution”, [58] and to make an end-run around section 1 and 33 of the Charter, which allow, respectively, reasonable limitation of rights and legislative override of some of them, including, relevantly for this case, the freedom of expression.

To support its claim that principles have only interpretive and suppletive effects, the majority reviews various cases that might suggest otherwise. Notably, it dismisses the dissent on the legal question in the Patriation Reference, Re: Resolution to amend the Constitution, [1981] 1 SCR 753, which the Supreme Court later unanimously endorsed in Reference re Secession of Quebec, [1998] 2 SCR 217, on the basis that “while the specific aspects of federalism at issue there may not have been found in the express terms of the Constitution, federalism is“. [52] As for the Provincial Judges Reference, Reference re Remuneration of Judges of the Provincial Court (PEI), [1997] 3 SCR 3, it stands, the majority says, for the proposition that “where the constitutional text is not itself sufficiently definitive or comprehensive to furnish the answer to a constitutional question, a court may use unwritten constitutional principles as interpretive aids” [65] and “to fill a gap where provincial courts dealing with non‑criminal matters were concerned”. [66]

In this case, “the unwritten constitutional principle of democracy cannot be used to narrow legislative competence” over municipalities, which is “plenary” and “unrestricted by any constitutional principle”. [80] Moreover,

The constitutional status of municipalities, and whether they ought to enjoy greater independence from the provinces, was a topic of debate during patriation … In the end, municipalities were not constitutionalized, either in amendments to the Constitution Act, 1867 or by reference in the democratic rights enshrined in the Charter. … Were the unwritten democratic principle applied to require all elections to conform to the requirements of s. 3 (including municipal elections, and not just elections to the House of Commons or provincial legislatures), the text of s. 3 would be rendered substantially irrelevant and redundant. [81]

The dissent, again, sees matters differently. It points out that unwritten principles have been recognized as binding both in Canada and in other “Parliamentary” [166] constitutional systems. (The dissent thus does not mention the United States.) It insists that

unwritten principles are our Constitution’s most basic normative commitments from which specific textual provisions derive. … Constitutional text emanates from underlying principles, but it will not always be exhaustive of those principles. In other words, the text is not exhaustive of our Constitution. [168]

The dissent rejects the majority’s insistence on the primacy of the text. Unwritten principles are just as important. It is they that “assist in developing an evolutionary understanding of the rights and freedoms guaranteed in our Constitution” ― that is, they “make[]” the constitutional living “tree grow”. [179] As for the majority’s argument based on section 52 of the Constitution Act, 1982, it “is a highly technical exegetical exercise designed to overturn our binding authority establishing that unwritten constitutional principles are a full constitutional partner with the text”. [183]

For the dissent, in “rare” cases “unwritten principles may be used to invalidate legislation” that “elides the reach of any express constitutional provision but is fundamentally at odds with our Constitution’s ‘internal architecture’ or ‘basic constitutional structure'”. [170] As the dissent sees things, this is what happened in the Provincial Judges Reference, as well as in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, [2014] 3 SCR 31. That said, the dissent does not say anything about the application of the democratic principle in this case, which it has already resolved on the Charter argument.

By my lights, this is the judicial equivalent of a Leafs-Bruins game, which both ought to lose, but one has to win, just because. Now, I think that the majority’s conclusion is correct as a matter of both precedent and principle. As the Supreme Court held in British Columbia v Imperial Tobacco Canada Ltd, 2005 SCC 49, [2005] 2 SCR 473, it would be wrong to apply an unwritten principle so as to expand the scope of a Charter right so as to directly contradict clear text. Imperial Tobacco concerned the protection against retroactive legislation, which the Charter reserved to criminal law. Here we are dealing with the right to vote, and its love child “effective representation”, which the Charter reserves to federal and provincial, not municipal, elections. So far, so good. But only so far.

The rest of the majority’s analysis ― which, of course, is quite unnecessary, because the passage from paragraph 81 quoted above is enough to dispose of this issue ― rests on wholly untenable distinctions. The majority says that federalism is unlike the other constitutional principles ― indeed, that it is not a constitutional principle but part of the constitution’s “structure” ― because “federalism is” “found in the express terms of the Constitution”, notably the division of powers between the Dominion and the provinces. But the same is true of democracy and of the rule of law. We can point to some provisions, such as sections 1 and 3-5 of the Charter for democracy (as well, of course, as all the provisions having to do with the House of Commons in the Constitution Act, 1867), and sections 9-11 of the Charter and 133 of the Constitution Act, 1867 (again, this is not an exhaustive list) to say that these principles too are found in the express terms of the Constitution, and hence their other “specific aspects .. not found” in those express terms can nonetheless be judicially enforced.

Similarly, the majority’s distinction between alleged “gap-filling” in the Provincial Judges Reference “where provincial courts dealing with non‑criminal matters were concerned” and invalidating laws on the basis of unwritten principles is humbug. So far as these courts were concerned, the only reason the laws reducing their judges’ salaries were invalid was unwritten principle.

Last but not least, as Mark has noted, the majority doesn’t even begin to address  Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, with its clear statement that

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

In other words, Vavilov says that the Rule of Law principle does invalidate legislation to the extent that (though only to the extent that) it would require an incompatible standard of review.

The majority also says that “The unwritten constitutional principle of the honour of the Crown is sui generis” because, it seems, it “arises from the assertion of Crown sovereignty over pre‑existing Aboriginal societies … and from the unique relationship between the Crown and Indigenous peoples”. [62] But the other principles, such as federalism (a sine qua non for Canada’s existence) and democracy and the Rule of Law (1688 and all that), can also boast “unique” historical pedigrees.

The majority’s other arguments fare just as badly as its attempts at splitting hairs with a blunt axe. Applying principles to invalidate laws does not trespass into constitutional amendment if principles were already part of the constitution as enacted, in 1867 and in 1982. While some applications may inappropriately compromise section 33 of the Charter ― which is arguably one reason why Imperial Tobacco approach to cases to which the Charter already speaks is correct ― others will not. Principles are not reducible to expanded forms of Charter rights. Federalism is of course the obvious case in point. As for section 1 of the Charter, foreign precedents, such as the Australian jurisprudence on the implied freedom of political communication, suggest that something like a proportionality analysis can be combined with unwritten principles. Again, though, principles are not just a beefed-up Charter. Perhaps the best argument the majority advances is the one based on the word “provisions” in section 52(1) of the Constitution Act, 1982, but ― without endorsing the dissent’s rant about “technical exegetical exercises” ― I think that it is undermined by section 52(2)’s suggestion that “the Constitution of Canada” is not limited to textual sources, to say nothing of the Supreme Court’s jurisprudence to this effect.

A word, finally, on the dissent. It advocates not only for living constitutionalism, which as readers will know I think is a misbegotten interpretive approach, but also, more precisely, for what I have described as “constitutionalism from the cave“. This is the view that the constitution’s text is just a pale shadow of the true constitution, which judges alone can, over time, discover and impose. As much as I think the majority’s attempt to swat constitutional principles away is unsound as a matter of both doctrine and, sorry, principle, this is not a tenable alternative.


Here we are, then, at the last chapter of this unfortunate saga. It began with institutional vandalism by the Ontario legislature, and concludes with a Supreme Court decision that, despite narrowly reaching the right outcome, may yet do considerable damage of its own. The majority’s statements on freedom of expression are worrying, and its discussion of constitutional principles ― admittedly, a difficult subject (I have had more to say on it here) ― is almost entirely wrong-headed. The dissent, meanwhile, is largely unmoored from the law throughout. The judicial end is not better than the legislative beginning.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

Common Power Grabs

A defence of Ontario’s use of the notwithstanding clause as “common good constitutionalism” is the same old tripe, under a new sauce

Over at Ius et Iustitium, Kerry Sun, Stéphane Sérafin, and Xavier Foccroulle Ménard (I shall refer to them collectively as SSM) have a new addition to the rather stale menu of notwithstanding clause apologetics: a post that attempts to justify legislative override of the Canadian Charter of Rights and Freedoms as a form of “common good constitutionalism”. SSM write

that the notwithstanding clause should be viewed as enshrining a form of coordinate interpretation. Under this approach, ideally, the invocation of s. 33 may be contemplated in those cases where a legislature seeking to advance the common good reasonably disagrees with the judicial interpretation of a rights provision

Except for the invocation of the “common good”, this is the usual fare. Legislatures are supposed to have their own views about what Charter rights mean and entail, and are justified in imposing these views on the citizens. Joanna Baron and Geoffrey Sigalet made one such argument over at Policy Options a couple of years ago (I critiqued it here), and more recently Professor Sigalet made a similar case in a National Post op-ed with Ben Woodfinden.

But the addition of the “common good constitutionalism” sauce is noteworthy. So far as it is possible to define, “common good constitutionalism” is a branch of right-wing anti-liberal thought which seeks to re-establish constitutional law on foundations ostentatiously grounded in traditionalist ideology and/or medieval natural law, and thereby to make it serve the general good, as understood by its exponents. In substance, “common good constitutionalism” often amounts to a celebration of political power at the expense of the rights of minorities. In form, it distinguishes itself not only by the aforementioned ostentatious traditionalism or medievalism, but also by its a refusal to seriously engage with non-adherents to the doctrine. (Its celebrity chef, Adrian Vermeule, is notorious for blocking people who have not attacked or sometimes even interacted with him on Twitter.)

Unfortunately, these traits are all present in SSM’s post. I address a number of specific faulty arguments it makes below, but first let me note that ― remarkably for a piece of scholarly writing ― it never quotes or even cites the people it disagrees with. They are merely nameless, faceless “critics” of this or that, and the only source SSM refer to for their views is the not-at-all critical op-ed by Professor Sigalet and Mr. Woodfinden linked to above. Mr. Ménard tries to make a virtue out of this in a subsequent Twitter exchange with Emmett Macfarlane, candidly admitting that he would “rather cite jurists who share” his fundamental premises “than political scientists with whom I share piecemeal views. It makes for better scholarship”, he says. No, it doesn’t. Participants in scholarly debate should endeavour to bring their opponents’ best arguments to their audience’s attention. Those who fail to do so risk becoming propagandists, no matter how many footnotes their writings include.


The entrée for SSM’s paean to the notwithstanding clause is the enactment by the Ontario legislature of the Protecting Elections and Defending Democracy Act, 2021, which invokes s. 33 of the Charter to override the decision of the province’s Superior Court of Justice in Working Families Ontario v Ontario, 2021 ONSC 4076. I will eventually post a detailed analysis of the Court’s decision, but as I have already noted in The Line, its conclusion is self-evidently correct. Section 1 of the Charter requires limits on the rights it guarantees to be reasonable and demonstrably justified. Yet the Ontario government simply provided no justification for extending the duration of very severe restrictions on the ability of civil society groups to engage in political advertising from six months before the start of an election campaign to a year. It own experts had previously said that the six-month period was reasonable. The law could not stand. But the legislature re-passed it in four days.

SSM’s presentation of the situation is misleading. For one thing, they claim that the “arguments” against Ontario’s legislation were “very similar to those raised in” Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827. This is doubly wrong. First, the case actually decided by the Superior Court was focused on the lack of justification for the latest extension of Ontario’s censorship regime, not the validity of such a regime in principle. But even the original dispute about the six-month-long pre-campaign censorship period is far outside the scope of Harper. There the majority invoked the lack of restraint on political speech outside a five-week-long election campaign as evidence of the limited (and hence justified) nature of the restraints during that campaign. SSM further mislead their readers by suggesting that, “[a]s a result of the court ruling, Ontario would likely have no spending limits by unions, corporations, or other third parties in place prior to the next election period, slated to begin in the summer of 2022”. Needless to say, the Ontario legislature could have re-enacted a six-month (or shorter) restriction period just as easily is it re-enacted a year-long one. Its masters in the executive just chose not to do that.

This brings me to another weakness in SSM’s argument. Responding to critics of “the Ontario legislature’s failure to advance a justification for” invoking the “notwithstanding clause”, they insist that “a justification was in fact given in this case: preserving the fairness and integrity of Ontario’s provincial elections”. Leave aside its substantive merits for the moment, and notice the artful use of the passive voice: a justification “was advanced” ― by whom? The text does not say, but the footnote supporting this sentence refers to two sources. One is a passage from the Working Families judgment quoting the Attorney-General’s speech to the legislature about the bill it struck down; it simply has nothing to do with the use of the notwithstanding clause. The other is a news story quoting a statement by a spokesman for the government’s House Leader. Neither, in other words, reflect the legislature’s considered views about the notwithstanding clause. Instead, certainly the former and arguably the latter emanate from the executive rather than the legislature.

Without meaning to, SSM give away the notwithstanding clause defenders’ sleight of hand: while they denounce those who have but “a limited regard for the legislature’s capacity to reason about rights”, they are, in reality, apologists for executive power. Unsurprisingly, they repeatedly speak of the government, not the legislature, invoking the notwithstanding clause. Earlier, they cheerfully note that Premier Doug “Ford’s government controlled the legislature, and so the bill” that expanded the censorship of political advertising before elections “passed with little difficulty”. This all is, of course, of a piece of the “common good” movement’s embrace of executive and administrative power elsewhere. Professor Vermeule, for instance, is an advocate of “law’s abnegation”, as the title of one of his books has it, in the face of the administrative state. SSM themselves defend approaches to legal interpretation that would empower administrative decision-makers instead of holding them to the limits enacted by legislatures.

This power, moreover, is an unbridled one. Recall that, contrary to SSM’s insistence on (legislative) reasoning about rights, the Ontario government advanced no reason at all to justify its expansion of political censorship. To repeat, the Superior Court did not disagree with the government’s justification or rule that it was insufficiently supported by evidence ― though it’s worth pointing out that there never has been any evidence that the integrity and fairness of Canadian elections were compromised by the lack of a year-long gag on the civil society, or even by the absence of the much more modest restrictions upheld in Harper. The Harper majority specifically held that evidence was unnecessary ― a reason, among others, why Harper is one of the Supreme Court’s worst decisions of all time.

Be that as it may, the Working Families court found that there was no justification at all for limiting the freedom of expression of civil society groups for as long as the legislature had. For all that SSM claim to regard “law as a work of reason”, for all their insistence that “[t]hrough a prudent exercise of reason, the law-maker is free and apt to make a practical judgment in choosing among the many alternatives, the many legitimate and reasonable possibilities”, the law they actually extol is an unreasoned power-grab by the executive. By asking us to accept it in the name of reason, SSM show that this rhetoric is just a spice intended to mask the insipid taste of their actual position.

And, for all their contempt for legal positivism and posturing as the heirs to the natural law tradition, SSM are, in truth, asking us to accept the authority of law simply because it has been enacted by the state. They deprecate as simple-mindedly positivistic the view of “legal rights as solely the emanation of judicial decisions”, so that “a Charter right is effectively nullified if the legislature derogates from judicial review via the notwithstanding mechanism”. (SSM never say, of course, who actually holds these views.) For them rights, being emanations of the natural law, exist even if they cannot be enforced through the courts.

But individuals must accept the legislature’s ― or rather, as we have seen, the executive’s ― specification of these rights, even when, as in the case of Ontario’s censorship regime and its use of the notwithstanding clause, the legislature manifestly failed to turn its mind to the right in question. No other reason than the legislature’s authority, and the common good constitutionalists’ naïve believe in its ability to reason, is necessary. And of course, like all notwithstanding clause apologists, SSM trot out the historical fact that it is “part of the Charter and the political settlement that made possible the constitutional entrenchment itself”, as if that can legitimate political actors resorting to it. But that is only so on a nakedly positivist view, where the legality of something is sufficient warrant for its legitimacy.


As co-blogger Mark Mancini and I have previously suggested here and here, SSM’s embrace of common good constitutionalism is superfluous at best, and actively pernicious at worst. If is superfluous if it only serves to provide a baroque vocabulary for warmed-up arguments for in favour of political power and against judicially-enforceable individual rights. It is pernicious if they really mean to embrace the most reactionary views associated with, and sometimes openly embraced by, their ideological fellow travellers.

On the whole, their Ius et Iustitium post is evidence for the former possibility. Little if anything in it could not have been said, and has not been said, without the “common good” sauce. But even stripped of this rhetoric, the argument remains distasteful enough. Citizens ought to defer to the choices executive branch officials, so long as they have been laundered through supine legislatures, because these legislatures in theory could have ― and it doesn’t matter that they actually haven’t ― engaged in reasoned deliberations about rights. Calling something an exercise of reason directed at the common good does not make it so. Tripe is tripe, and a power grab is a power grab.

Still Wrong, Just a Little Less So

The Québec Court of Appeal errs in thinking the Charter prevents the imposition of, in effect, life imprisonment without parole

This post is co-written with Maxime St-Hiliaire

What punishment is just for someone who takes the lives of many other human beings? And what punishment for such a person is constitutional? In Bissonnette v R, 2020 QCCA 1585 answers the latter question, and its answer is at odds with the answer to the former. In an unattributed unanimous opinion, the Court holds that a provision of the Criminal Code that allowed―but did not require―sentencing judges to stack minimum parole ineligibility periods imposed for multiple counts of first-degree murder is unconstitutional. The Court finds that the very possibility of such stacking is cruel and unusual punishment prohibited by section 12 of the Canadian Charter of Rights and Freedoms, and a deprivation of liberty and security of the person contrary to the principles of fundamental justice prohibited by section 7 of the Charter.

The sentencing judge in R v Bissonnette, 2019 QCCS 354 thought that the ordinary sentence of life imprisonment without parole eligibility for 25 years would not have been adequate. However, he also found the stacking of multiple 25-year periods constitutionally objectionable, and took it upon himself to rewrite the Criminal Code so as to give himself the discretion to fashion what he took to be the appropriate sentence of life imprisonment without parole for a 40-year period. The Crown appealed the finding of unconstitutionality, while Mr. Bissonnette appealed the sentencing judge’s remedy (which the Crown defended as an alternative).


The Court of Appeal first considers whether the stacking of parole ineligibility periods amounts to cruel and unusual punishment. In its view, the fact that such stacking is not required and can be ordered at a judge’s discretion does not remedy its constitutional defects: “notwithstanding the existence of a discretionary power by which the judge can refrain from imposing a cruel and unusual sentence, the provision is invalid simply because it authorizes a judge to impose such a sentence”. [79] It clarifies, however, that a discretionary sentence that will be cruel and unusual in some cases ought to be upheld if it will nevertheless be proportionate in others. Thus “the question to be resolved is this: are there situations in which it would not be cruel and unusual to impose minimum parole ineligibility periods of 50, 75, 100, 125, 150, indeed 1,000, years?” [89]

The Court takes the position that there are no such situations. Indeed, in its view, the idea is simply irrational. For one thing, “the number of victims to be used as a basis for a judge to stack periods of ineligibility is a legislative choice that is difficult to reconcile with the sentencing criteria in place in Canada”. [91] The possibility of a court “imposing a parole ineligibility period that highly exceeds the life expectancy of any human being” [92] is particularly disturbing. For the Court of Appeal, “[a] court must not make an order that can never be carried out”, because this “brings the administration of justice into disrepute” and amounts to “senselessness” that “is, in and of itself, cruel and unusual punishment … degrading because of its absurdity”. [93] Indeed, even a sentence of life imprisonment without parole “is at least tied to the lifetime of a human being, while ineligibility periods totalling 100 years and more have nothing in common with the duration of a human life”. [95]

But the problem the Court sees with stacked parole ineligibility periods, even just two, is more than just irrationality. It also has to do with the possibility that a rehabilitated offender would be denied the opportunity to apply for parole:

An inmate rehabilitated after 25 years and not eligible to apply for parole before a second 25-year period would, in all cases, be subject to cruel and unusual treatment. The excessive length of the unnecessarily prolonged incarceration would be grossly disproportionate. … [107]

For the Court of Appeal, “preventing a reformed accused from having genuine access to the parole application process” [111] is in itself a fatal constitutional flaw, compounded by the fact that the sentencing “judge is not in a position, barring speculation, to genuinely know the likelihood that the accused will be rehabilitated in 25 years. He is in an even worse position, if that is possible, when dealing with a period of 50 years.” [110] This flaw cannot be justified under section 1 of the Charter.

The Court then turns to section 7 of the Charter. It notes that sentencing judge’s findings that not only are stacked parole ineligibility periods a deprivation of liberty, but also that “an actual irreducible sentence of imprisonment for life” [117] produce psychological impacts that amount to a deprivation of the prisoners’ security of the person are not challenged. The issue is whether these deprivations accord with principles of fundamental justice.

The Court of Appeal does not follow the judge below in accepting the protection of human dignity as a principle of fundamental justice and finding that it too has been breached. For it, two such principles are at play: the prohibitions on overbreadth and gross disproportionality. Both are assessed relative to the objective of the impugned legislation. The purpose of allowing sentencing judges to stack parole ineligibility periods for multiple murders is to “(1) protect society from the most incorrigible killers, and (2) restore the balance between the rights of victims and those of multiple murderers and acknowledge the value of ‘every life lost’”. [135]

The Court finds that the possibility of stacking parole ineligibility periods is overbroad “because it applies to all multiple murderers, regardless of the specific circumstances of each case”, [139] and not “only to psychopaths, organized crime hitmen or incorrigible murderers”. [140] Some might be sentenced to extended parole ineligibility without being unusually dangerous. The rule thus produces effects not rationally connected to its ostensible objectives, and so is overbroad. Nor is the stacking of parole ineligibility periods rationally connected to acknowledging every victim, since in any case a person so sentenced is likely or bound to die before all of the consecutive periods have elapsed. Such sentencing is also grossly disproportionate to its stated objectives. The overbreadth and gross disproportionality cannot be justified in a free and democratic society.

The last question for the Court is that of the remedy. Unlike the judge below, it holds that it must simply declare the possibility of stacking ineligibility periods invalid, “without being rewritten by the courts”. [186] It is clear that Parliament considered and rejected the solution adopted by the sentencing judge ― granting judges discretion as to the duration of parole ineligibility beyond the usual 25 years for a first-degree murder. It would not be appropriate for courts to impose it anyway.


In our view, the Court of Appeal’s judgment is less troubling than that of the Superior Court, which we criticized here. In particular, it is important to note that the Court takes the correct approach to the question of the remedy ― assuming, of course, that its conclusion of unconstitutionality is also correct. But it is not. The Court of Appeal’s reasoning on the issue of constitutionality misapprehends the inquiry and consequently falls into doctrinal error, as well as moral myopia.

Indeed, its most fundamental flaw is one that it ascribes to the legislation it pronounces unconstitutional: a refusal to engage with the circumstances and deserts of the individual accused. The very first sentence of the Court’s reasons proclaims that

[t]his judgment is not about the horror of Alexandre Bissonnette’s actions on January 29, 2017, nor even about the impact of his crimes on an entire community and on society in general; it is, rather, first and foremost, about the constitutionality of a provision of the Criminal Code. [1]

The Court subsequently adds that “[t]he analysis of the provision’s constitutionality must be carried out independently of the appellant’s case, notwithstanding the horror of his actions”. [54] The Court no doubt means this as a reminder that even the worst wrongdoers have rights under the Charter, which must be not be overlooked by focusing on their wrongdoing alone. That is true, so far as it goes. But there is a reason why Canadian courts normally assess the constitutionality of legislation on the facts of particular cases rather than in the abstract. This case, which is, pace the Court of Appeal, about the sentencing of man who murdered six worshippers at a mosque in Québec City and injured 19 others, ought to have been a reminder of that fact. 

In the Supreme Court’s first explication of section 12 of the Charter in R v Smith, [1987] 1 SCR 1045, Justice Lamer (as he then was) wrote that

[i]n assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. … Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances. (1073)

In other words, contrary to the Court of Appeal’s approach, the offence and the offender ― including “the horror of his actions” are the primary consideration in assessing an alleged infringement of section 12. The Supreme Court has followed this approach more recently too, including in R v Boudreault, 2018 SCC 58, [2018] 3 SCR 599. The Court of Appeal neglects “to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender”, and this failure warps its subsequent analysis.

In particular, the Court of Appeal is single-mindedly focused on the issue of rehabilitation as the overriding consideration in deciding whether stacked parole ineligibility periods can ever be a constitutionally acceptable punishment. But, focusing on the facts before it, the Court ought to have remembered that ― as Justice Lamer suggested in Smith ― rehabilitation is not necessarily the primary factor in deciding on a fit sentence. Sometimes, the need to punish will dominate. This is not a crass desire for vengeance, but a recognition that different circumstances ― different offenses and different offenders ― call for different responses on the part of society.

A comparison with the sentencing judgment of the New Zealand High Court in the case of the Christchurch mosque shooter, R v Tarrant [2020] NZHC 2192, is relevant. As one of us (Sirota) has explained here, in that case Justice Mander found that

no minimum period of imprisonment would be sufficient to satisfy the legitimate need to hold [the shooter] to account for the harm [he] ha[d] done to the community. Nor [would] minimum term of imprisonment would be sufficient to denounce [his] crimes. [179]

Ironically, the Court of Appeal refers to the Christchurch shooting, noting in a footnote that “the Christchurch massacre (51 victims) could have resulted in a period of 1,275 years” of parole ineligibility. For the Court this is self-evidently absurd. But for the judge who actually sentenced its perpetrator only a sentence of life imprisonment without parole would have sufficed.

This illustrates the fact the Court of Appeal has no regard to deserts of the man before it ― in violation of another cardinal principle of sentencing, that of the indivudalization of the sentence. It is also confused about the significance of the fact that a sentencing judge retains the discretion as to whether to sentence a given offender to a stacked period of parole ineligibility, at one point suggesting that this discretion is of no significance. Like it or not, Parliament enacted a law that allows individualized, if rough, justice. The Court of Appeal, by contrast, reasons entirely in the abstract.

Now, Parliament’s response to the prospect of vicious mass murder is, in our view, rather clunky. It would have been more straightforward, indeed more honest, to make sentences of life imprisonment without parole available, just as the New Zealand Parliament has done, instead of simply stacking non-eligibility periods until they quickly reach the same point. But the Court of Appeal does not really argue ― it merely asserts ― that the absurdity of extended ineligibility periods is inherently cruel. The person sentenced to such a punishment will understand what it means. And as for the claim that stacked parole ineligibility periods, because they cannot be served in full, discredit the administration of justice, it is simply beside the point. Section 12 of the Charter is concerned with justice to the offender, not the courts’ opinion of themselves.

As for the Court of Appeal’s reasoning on section 7 of the Charter, it also suffers from the Court’s failure to account for the discretionary nature of the stacking of parole ineligibility periods permitted ― not required! ― by the Criminal Code. The Court says that in some cases a stacked sentence can be imposed on multiple murderers who are not among the worst of the worst, and so not the sort of offender to deal with whom the stacking was permitted. But if indeed such a sentence is inappropriate ― and it is worth noting yet again that, as this very case highlights, the categories of the incorrigible are not closed, and are not limited to “psychopaths” and “organized crime hitmen” ― the sentencing in the particular case can be overturned on appeal. It seems that the Court of Appeal, like the judge below, simply does not trust to the discernment of other judges.      


Like the Court of Appeal and the Superior Court, and like the New Zealand High Court, we believe that sentencing ― even for terrorist mass murderers ― must not be an exercise in raw vengeance. It is a good thing that Parliament’s authority to direct sentencing is constitutionally constrained. It is all too true that Parliament can sometimes demand punishment incommensurate to crime, especially when it seeks to curtail the sentencing judges’ ability to assess the actions and culpability of the offender in a pursuit of a law that will be equally harsh to all.

But nor can sentencing lose sight of the actions for which the sentence is being imposed. It would be a perverse constitution that required this, and fortunately the Charter is not so perverse. The principles consistently set out by the Supreme Court make clear both that the primary responsibility for sentencing policy is Parliament’s, and that applying constitutional constraints on Parliament must only serve to prevent abuses ― not to become an exercise in abstract, and ultimately soulless, humanitarianism. We hope that the Supreme Court will step in and reassert these principles once more in this case.

Still Keeping It Complicated

The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.


As mentioned in my last post, Justice Abella insists that her approach to interpretation is “contextual” and, above all, “purposive”. In truth, it might be better described as authorizing constitution-making by the Supreme Court. It is “the Court” ― following an American usage, Justice Abella does not bother specifying which one ― that “has, over time, decided who and what came within the Charter’s protective scope”. [49] The Supreme Court does not simply decide cases in which the question arose. No, it apparently ruled, as a matter of discretion, on whom the Charter will protect going forward.

Judicial rulings in constitutional cases are not, for Justice Abella, mere workings out of the constitution’s meaning. Indeed, the constitutional text plays no special role in interpretation for her. This is unsurprising, because Justice Abella embraces the view that co-blogger Mark Mancini recently described as “linguistic nihilism” ― the idea “that language is never clear, or put differently, hopelessly vague or ambiguous”, so that “the task of interpretation based on text is a fool’s game”. (Of course this is of a piece with Justice Abella’s commitments in administrative law.) It is also unsurprising, then, that her discussion of international materials suggests that text does not really matter at all, and a variety of differently-worded provisions all stand for the exact same principles, without any meaningful inquiry into the relevance, if any, of their language. In fact, Justice Abella is openly disdainful of the possibility that textual nuance ― such as “the presence of a comma” [75] ― might make a difference in interpretation.

Another reason for Justice Abella’s refusal to be bound by constitutional text is that this ” could unduly constrain the scope of [constitutional] rights”. [75] This reflects the conviction, common among living constitutionalists, that judicial re-writing of constitutions is a one-way ratchet unfailing causing rights to expand. This view is belied by experience. But, quite apart from that: “unduly” by what standard? If not by reference to text, how do we know what is the due scope of constitutional rights? This ambiguity is of a piece with Justice Abella’s insistence that section 12 “is meant to protect human dignity and respect the inherent worth of individuals. Its intended beneficiaries are people, not corporations.” [51] Is meant… by whom? Intended… by whom? And how do we know?

As Mr. Oliphant and I noted in the paper linked to above, “[m]arks on paper have no will or agency and thus can have no ‘purposes’ or ‘intentions’ that are independent of willful actors”. (537) One possibility, as we suggested, is that this language becomes an opening for an inquiry into the intentions of the Charter‘s framers. But Justice Abella isn’t very interested in that. Unlike the Supreme Court in some cases, she doesn’t consider the Charter‘s drafting history or the views of its framers, beyond a passing reference to Pierre Trudeau’s general comments about the Charter‘s raison d’être.

Justice Abella’s use of ambiguous language and the passive voice, like her refusal to be bound by text or to commit to any hierarchy of interpretive sources, suggest that she believes herself to have has complete discretion in deciding what the Charter is to mean. Her own sense of justice is the only standard of who is “due” protection under the constitution, and what protection they are “due”. This is unsurprising, of course, from someone who professes impatience with the Rule of Law and prefers a “rule of justice”. Constitutional purposes, as she conceives of them, are Platonic abstractions, which the wise ― she the wisest ― must interpret for the rest of us.

As I have said a number of times in the past, “constitutionalism from the cave” is not real constitutionalism. It is antithetical to the Rule of Law. Ultimately, it undermines the foundations of judicial review: if the constitution means whatever unelected judges preoccupied with international approval more than with the law or the commands of the constitution’s framers say it means, there is no particular reason why the political branches would comply with these judges’ musings. It is good that this view is dealt a defeat by the Supreme Court’s majority.


In contrast to Justice Abella, Justices Brown and Rowe emphasize the importance of constitutional text. It is not, I think, merely a matter of the text being chronologically the first consideration for a court engaged in constitutional interpretation: “constitutional interpretation” is “the interpretation of the text of the Constitution”. [9] The text is its focus and overriding constraint; it has “primacy” over other considerations. [10, citing Caron v Alberta, 2015 SCC 56, [2015] 3 SCR 511 at [36]]

One way in which the text matters is, of course, through the ordinary meaning of its words and the inferences that can be drawn from it. Here, since the word “cruel” refers to the infliction of human suffering, it stands to reason that section 12 does not protect corporations. But the significance of the text goes further. The history of the text and the changes it underwent are relevant too, as Justices Brown and Rowe show by pointing ― in language that, as I noted in my last post, closely mirrors that of my comment on the Court of Appeal’s decision in this case ― to the contrast between the language of section 12 and that of its predecessors in Magna Carta and the Bill of Rights 1688. Other provisions on the text are relevant too.

To my mind, this ― so far as it goes ― is a sound approach to constitutional interpretation, and I am happy to see it forcefully stated by a majority of the Supreme Court. If I were to put a label on it, it would be “textualism”. Consider the definition of textualism given by then-Judge, now Justice Amy Coney Barrett in a lecture I reviewed here:

Textualism … insists that judges must construe statutory language consistent with its “ordinary meaning.” The law is comprised of words—and textualists emphasize that words mean what they say, not what a judge thinks that they ought to say. For textualists, statutory language is a hard constraint. Fidelity to the law means fidelity to the text as it is written. (856; footnote omitted)

This is what Justices Brown and Rowe are doing: insisting that the object of interpretation is words, text, and focusing on their ordinary meaning, which is a hard constraint on interpretation.

Yet Justices Brown and Rowe reject the label of textualism. To their mind, what they are doing is purposive interpretation. Judge Barrett, as she then was, saw purposivism as the opposite of textualism, though in my post I cautioned that “many approaches to interpretation and construction, including ones that respect the primacy and constraint of the text, might properly be described as purposive”. Perhaps this is what Justices Brown and Rowe are advocating ― a sort of “purposivism”, if that’s what they prefer to call it, but one that has a great deal more in common with textualism as defined by Judge Barrett than with “purposivism” as defined by Justice Abella.

So maybe the moral of the story here is that we all should be less hung up on labels. But in my view there is a real cost to the lack of clarity that the labels used by the Supreme Court generate. I wrote about this here when I commented on R v Stillman, 2019 SCC 40. In that case, similarly to here, the majority and the dissent both claimed to be engaged in purposive interpretation. But the majority, I argued, was in effect following a public meaning originalist (and hence textualist) approach, while the dissent was doing constitutionalism from the cave. As I said then, to pretend that textualist interpretation is really purposive generates unnecessary detours. Here, the majority’s references to human dignity as the purpose of section 12 do no real work, and unnecessarily burden the reasoning with what is, by the Supreme Court’s own well-known admission in R v Kapp, 2008 SCC 41, [2008] 2 SCR 483, “an abstract and subjective notion”. [22] And, as I also said in my comment on Stillman, mislabeling an originalist or textualist interpretation as purposivist makes it possible for the partisans of an entirely different version of purposivism to invoke cases that go directly against their views as support for them. Justice Abella does precisely that here (at [73]).

Worse still, from my perspective, than the mere confusion about labels is the seeming rejection by Justices Brown and Rowe of the substance of public meaning originalism, under the label of “new textualism” which they borrow from Aharon Barak’s Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, where it stands as a shorthand for Justice’s Scalia’s interpretive approach. This is the idea, as President Barak put it, “that that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment”. (82; reference omitted) Justices Brown and Rowe claim that this approach is “not remotely consistent” [12] with theirs. If they are right, this would be the first rejection of public meaning originalism by the Supreme Court. As Mr. Oliphant and I have shown, until now, the only versions of originalism that had been clearly rejected were those, disfavoured by originalists themselves, that focus on original expected applications and outcomes.

Yet it will take more than this opinion of Justices Brown and Rowe to make me give up on originalism. Let me note, first, that Justice Brown himself was a co-author of the Stillman majority opinion (and that its other co-author was Justice Moldaver, who agrees with Justices Brown and Rowe here). I described that opinion as “perhaps the most originalist, and specifically public-meaning originalist, in a constitutional case since that of the majority in Caron“. And yes, Caron ― which Justices Brown and Rowe repeatedly cite ― was a public-meaning originalist judgment, as I explained here. Both Stillman and Caron focused on ascertaining the meaning of the constitutional provisions at issue there by reference to how they would have been understood by “a reasonable reader at the time of enactment”, over dissents that favoured, respectively a more policy-infused approach and one based on the alleged intent of the framers. If Justices Brown and Rowe really meant to reject public meaning originalism, would they be relying on these cases? That seems implausible.

No less importantly, consider what Justices Brown and Rowe say elsewhere in their opinion. When they discuss the use of international and foreign materials, they draw an “important distinction … between instruments that pre‑ and post‑date the Charter“. [41] The former “clearly form part of the historical context of a Charter right and illuminate the way it was framed”, whether or not they were binding on Canada. The latter, only matter if they bind Canada, and even then subject to only a presumption that Canadian constitutional law conforms to them, and to the principle that international law does not automatically become part of Canadian law. This isn’t quite originalism: an originalist would be warier still of materials that post-date the Charter, although, as I am about to explain, without necessarily rejecting their relevance in all cases. But it’s pretty close. Originalists believe that constitutional text must be interpreted in context as of the date of its enactment, and reference to international materials available to Canadian framers is certainly a legitimate part of ascertaining the context in which the Charter‘s original meaning should be established. The fact that Justices Brown and Rowe draw a dividing line at the moment of the Charter’s enactment suggests that they are, in fact, open to something like originalist thinking.

All in all, my point is not that Justices Brown and Rowe are originalists. However, they are textualists, which is a big part of originalism, and their approach has at least some significant affinities with public meaning originalism. It is unfortunate that their self-misunderstanding muddies the waters. But if we focus on what they do rather than on what they say about what they do we can see that their opinion, despite its flaws, is an important step in the right direction, and by far preferable to Justice Abella’s.


I turn, finally, to the issue of international and comparative materials. I agree with the majority’s calls for care and discernment in the way such materials are used. Partly this is a matter of legal and intellectual rigour. Partly, as Justices Brown and Rowe say, of “preserving the integrity of the Canadian constitutional structure, and Canadian sovereignty”. [23] Justice Abella’s concerns about whether foreign scholars and courts will pay attention to Canadian constitutional law are beside the point. Ultimately, the Canadian constitution means what it means, and not what some international treaty, let alone foreign constitutional text, might mean ― a matter on which Canadian courts often could not pronounce. I would, however, add two further observations, which I already made here in discussing similar issues that arose in the Supreme Court’s decision in Frank v Canada (Attorney General), 2019 SCC 1, [2019] 1 SCR 3.

First, international and foreign materials may be more relevant and persuasive to courts engaged in constitutional construction, and in particular (but not only) in the demarcation of reasonable limits on rights under section 1 of the Charter, than in cases such as this one, which concern the interpretation of the Charter‘s text. When courts develop legal doctrine, they have more reason to look to international experience ― including international experience post-dating the Charter‘s enactment ― than when they seek to discern the meaning of the Charter‘s words ― an exercise to which, as Justices Brown and Rowe recognize, international and foreign materials post-dating the Charter are unlikely to be relevant. The majority’s unwillingness to seriously engage with public meaning originalism causes it to seemingly lump all constitutional questions together and so to lose sight of this nuance.

Second, when and to the extent that international and foreign law is relevant, judicial consideration of it should, as I wrote in my comment on Frank, “not be partial ― either in the sense of having a pre-determined result in mind, or in the sense of being incomplete”. I’m not quite sure what Justices Brown and Rowe mean by saying that such materials should be kept to “providing support and confirmation for the result reached by way of purposive interpretation”. [22; emphasis in the original] But it would not be intellectually honest for a court to only consider materials that agree with its conclusions and deliberately discard others. If the court considers foreign and international sources, it should address those that it does not find persuasive.

The court should also be careful not to misunderstand or mischaracterize these sources. Justice Abella’s invocation of the “judges in the majority” in Furman v Georgia, 402 US 238 (1972), as having “definitively discussed” the purpose of the Eighth Amendment is an example of such dangers. There was no unified majority in Furman; the two judges whom Justice Abella quotes, Justices Marshall and Brennan, were in fact the only ones who took the position they took, which was that the death penalty was necessarily cruel and unusual punishment. Three others took a more limited view that opened the door to the re-imposition of the death penalty, which was given the green light in Gregg v Georgia, 428 US 153 (1976), in effect reversing Furman. If judges are to refer to foreign law, they need to understand and be honest about it.


Overall, the Supreme Court, and specifically the majority opinion of Justices Brown and Rowe, brings a welcome dose of rigour to the task of constitutional interpretation in Canada. The primacy of constitutional text as the object of interpretation is affirmed, while freewheeling discretion to make the constitution the best it can be in a judge’s opinion is rejected. There is also a more rigorous approach to the use of international and foreign materials in constitutional interpretation. Compared to the alternative vividly illustrated by Justice Abella, this is all very welcome (and all the more so if, as I hypothesized in my last post, Justice Abella’s opinion was originally intended to be the majority one).

But the majority opinion is very far from perfect, and it will perpetuate much of the confusion that afflicts constitutional interpretation in Canada. Even as it adopts the methods of textualism and is largely compatible with public meaning originalism it disclaims the former and purports to reject the latter. This messiness is the sad consequence of a lack of serious thought about constitutional interpretation in Canada. One can only hope that this gap will be filled in the years to come.

You Read It Here First

The Supreme Court holds that the Charter does not protect corporations against cruel and unusual punishment

Can corporations avail themselves of the protection of section 12 of the Canadian Charter of Rights and Freedoms against “any cruel and unusual treatment or punishment”? In Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 the Supreme Court unanimously holds that it cannot. The question excited some debate, both for its own sake and also for its implications for constitutional interpretation more broadly, in the wake of the Québec Court of Appeal’s decision in this case, 9147-0732 Québec inc c Directeur des poursuites criminelles et pénales, 2019 QCCA 373. I argued against the position of the Court of Appeal’s majority and in favour of the one now adopted by the Supreme Court (here and then here); others, however, disagreed.

The narrow issue of the scope of section 12 is now decided, at least as a matter of positive law. But the splits among the Supreme Court’s judges and the ambiguities of the majority opinion delivered by Justices Brown and Rowe (with the agreement of the Chief Justice and Justices Moldaver and Côté) mean that the broader question of how Canadian courts should interpret the constitution remains unsettled. Although both the majority and Justice Abella, who concurs (with Justices Karakatsanis and Martin) claim for themselves the mantle of purposivism, the majority moves in a textualist direction, even as it denies doing so, while the concurrence defends an approach under which the constitution means whatever the Supreme Court thinks it should mean, though it does not quite admit it. Justice Kasirer, meanwhile, concurs in the result and pointedly refuses to step into his colleagues’ interpretive debate.

In this post, I summarize the opinions. I will follow up with comments, mostly on constitutional interpretation, in a separate post tomorrow. Benjamin Oliphant will also have comments in the coming days, dealing with both constitutional interpretation generally and the use of international law in particular.


The respondent (we’re not actually going to refer to it ― or to the case as a whole ― by the number, are we? what are supposed to call this case though?) was charged with having undertaken some construction work without the requisite license. It argued that the fine it would have to pay would be excessive, and thus in violation of section 12 of the Charter. All three judgments made short work of this view. All commended the dissenting reasons of Justice Chamberland at the Court of Appeal and, like him, all pointed to the fact that cruelty referred to the infliction of suffering in body or mind, of which human beings were capable, and legal persons were not. Justice Kasirer’s concurrence, which limits itself to making these points, is all of five paragraphs long.

But, for whatever reason, the other eight judges do not think this is enough. They debate the general principles of constitutional interpretation, focusing on two main issues: first, the primacy, or lack thereof, of the constitutional text; and second, the role of international materials. The subject of this debate is unusual for a Supreme Court of Canada decision: constitutional interpretation is seldom addressed at such length even in cases that actually turn on it, which this one doesn’t really. So is the debate’s vehemence. The perennial talk of the differences between the mean, originalism-debating US Supreme Court and its kinder, gentler Canadian counterpart was always overwrought, but it feels especially out of place now.

Another oddity of the debate between the majority opinion and that of Justice Abella is that the former seems to have been written entirely in response to the latter. It is a rare majority opinion that is introduced by a disclaimer that “[d]espite our agreement in the result, we find it necessary to write separately”. [3] I wonder whether the decision was originally assigned to Justice Abella, but some judges (starting presumably with Justices Brown and Rowe), being dissatisfied with her treatment of the interpretive issues, wrote separately, and ended up peeling off others, forming a new majority. Be that as it may, it is perhaps useful to start with Justice Abella’s reasons, since the majority responds to them more than the other way around.

Justice Abella describes her interpretive approach as “contextual” and “purposive”. The text has no special role to play in determining the Charter’s import: “examining the text of the Charter is only the beginning of the interpretive exercise, an exercise which is fundamentally different from interpreting a statute”, [71] and “elevating the plain text” of the Charter’s provisions “to a factor of special significance” is a mistake. [72] Due to its often “vague, open-ended language … [t]he text of those provisions may … be of comparatively limited assistance in interpreting their scope”. [74] Indeed, attaching too much importance to constitutional text

could unduly constrain the scope of those rights, or even yield two irreconcilable conclusions leading, for example, to the interpretive triumph of the presence of a comma in expanding gun-owners’ rights under the Second Amendment of the United States Constitution in District of Columbia v Heller, 554 US 570 (2008) [75]

Insisting on the primacy of the plain text of Charter rights” also undermines the constitution’s ability of to develop and “creates a risk that, over time, those rights will cease to represent the fundamental values of Canadian society and the purposes they were meant to uphold”. [76] Finally, “[a] textualist approach would also make Canadian constitutional law more insular”, [78] by which Justice Abella means both less inclined to consider foreign authority and less attractive as a reference point to foreign jurists.

Rather, purpose has to be inferred from a variety of contextual indicia, there being no “rigid hierarchy among these interpretative guides”, [80] although elsewhere Justice Abella suggests that “the principles and values underlying the enactment of the Charter provision are the primary interpretive tools”. [70] Justice Abella refers to dictionary definitions of the word “cruel”, the textual context of section 12 (notably the fact that almost no other “legal rights” protected by the Charter have been held to extend to corporations), and the historical context of its enactment (with respect to which Justice Abella briefly refers to the Bill of Rights 1688, the comments of some judges in  Furman v Georgia, 408 US 238 (1972), and the Canadian Bill of Rights).

Justice Abella also refers, copiously, to contemporary interpretations of section 12’s equivalents in foreign and international instruments. This is justified, she argues, by the fact that “Canada’s rights protections emerged from the same chrysalis of outrage” about Nazi crimes “as other countries around the world”. [98] It also ensures that Canada maintains a “leading voice internationally in constitutional adjudication”. [106] Unlike the majority, she wants to avoid creating a “hierarchical sliding scale of persuasiveness” [104] among these sources and “thereby transform[] the Court’s usual panoramic search for global wisdom into a series of compartmentalized barriers”. [61] Textual differences among these sources do not matter, because “a common meaning can be ascribed to their various formulations”. [108] These sources include international treaties, both those to which Canada is a and those to which it is not (like the American Convention on Human Rights), as well as the interpretations of these treaties by the relevant adjudicative bodies, as well as the jurisprudence of foreign domestic courts.

All these sources tend to the same conclusion:

In line with the global consensus, [section 12’s] purpose is to prevent the state from inflicting physical or mental pain and suffering through degrading and dehumanizing treatment or punishment. It is meant to protect human dignity and respect the inherent worth of individuals. … Since it cannot be said that corporations have an interest that falls within the purpose of the guarantee, they do not fall within s. 12’s scope. [135-36]

The majority, as already noted, strongly disagrees with Justice Abella’s approach. Like Justice Abella, Justices Brown and Rowe purport to interpret the Charter in a purposive manner. However, they accuse Justice Abella of “minimizing the primordial significance assigned by this Court’s jurisprudence to constitutional text in undertaking purposive interpretation”. [4] They insist that

within the purposive approach, the analysis must begin by considering the text of the provision … because constitutional interpretation, being the interpretation of the text of the Constitution, must first and foremost have reference to, and be constrained by, that text”. [8-9; emphasis in the original]

They add that “[g]iving primacy to the text” [10] is also the way to avoid framing the purpose of a provision too narrowly or too broadly.

Justices Brown and Rowe reject the charge that they are favouring a narrowly textualist approach. What Aharon Barak’s described, in his Harvard Law Review Supreme Court Term Foreword, “A Judge on Judging”, as “new textualism”, a “‘system [which] holds that the Constitution and every statute should be understood according to the reading of a reasonable reader at the time of enactment’ and in which ‘[r]eference to the history of the text’s creation . . . is not allowed’” [12], is “not remotely consistent with [the approach] which we apply and which our law demands”. [12]

Analyzing section 12, Justices Brown and Rowe first note that “the words ‘cruel and unusual treatment or punishment’ refer to human pain and suffering, both physical and mental”. [14; emphasis in the original] They mostly endorse Justice Abella’s historical analysis, although they “add that an examination of s. 12’s historical origins shows that the Charter took a different path from its predecessors”, [16] going back to Magna Carta, because “the right not to be denied reasonable bail without just cause was carved off from the right to be free from cruel and unusual punishment, and placed in s. 11(e) of the Charter”, while “[e]ven more significantly, the protection against ‘excessive fines’ was not retained at all”. [16] All “this is highly significant, if not determinative: excessive fines (which a corporation can sustain), without more, are not unconstitutional”. [17]

Readers may have seen these arguments before: in part, of course, in Justice Chamberland’s dissent at the Court of Appeal, but the reference to both Magna Carta and to section 11(e) of the Charter first appeared right here, in my comment on the Court of Appeal’s decision. Here’s what I wrote:

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. (Paragraph break removed, emphasis added)

I’ll let the reader judge how likely the similarity ― not only of ideas, of course, but of the way in which they are presented and even of the words used, especially the passage quoted above from paragraph 17 and the italicized sentence from my post ― is to be coincidental.

Justices Brown and Rowe then move on to discussing the use of international materials. This discussion, though, is still relevant to a more general consideration of constitutional interpretation. It begin with an assertion that “[a]s a constitutional document that was ‘made in Canada’ … the Charter and its provisions are primarily interpreted with regards to Canadian law and history”. [20] International and foreign materials can “support or confirm an interpretation arrived at through the Big M Drug Mart approach”, but not “to define the scope of Charter rights”. [28] Different types of instruments should also be treated differently: those that are binding on Canada are entitled to a presumption that the Charter is consistent with them; others are not. The date on which the international instruments came into being matters too:

International instruments that pre‑date the Charter can clearly form part of the historical context of a Charter right and illuminate the way it was framed. Here, whether Canada is or is not a party to such instruments is less important … As for instruments that post‑date the Charter, … [i]t can readily be seen that an instrument that post‑dates the Charter and that does not bind Canada carries much less interpretive weight than one that binds Canada and/or contributed to the development of the Charter. [41-42]

Foreign judicial decisions, meanwhile, must be invoked with “[p]articular caution” [43] and subject to an explanation as to the “way they are instructive, how they are being used, or why the particular sources are being relied on”. [44]


I am happy to see such extensive debate of constitutional interpretation taking place at the Supreme Court, though like Justice Kasirer I am a bit mystified by the reasons why it took place in this case. As co-blogger Mark Mancini and I argued just recently, Canadian law will benefit from more and better conversations about constitutional interpretation. A discussion of the use of international and comparative materials is also welcome, though again I wonder if this was the case in which it had to happen.

At the same time, by way of a preview of my next post, I will say that the treatment of constitutional interpretation in this case is not altogether satisfactory. To be sure, the majority opinion is a step in the right direction, as the contrast with Justice Abella’s concurrence makes clear. Yet although a substantive improvement on the alternative, this opinion engages in some misdirection and perpetuates the confusion that all too often characterize discussions of constitutional interpretation in Canada.