What Was Equilibrium Like?

Do police need a warrant before pretending to be a child to attract would-be molesters?

It’s been some time now, but the Supreme Court’s decision in R v Mills, 2019 SCC 22, is worth a comment. This is yet another case in which the Court had to address the application of the right, protected by section 8 of the Canadian Charter of Rights and Freedoms, “to be secure against unreasonable search or seizure” to new-ish technologies. These cases often divide the court, but seldom as much as Mills, where Justice Brown signs a leading opinion for himself and Justices Abella and Gascon; Justice Karakatsanis has a concurrence to which the Chief Justice signs on; Justice Moldaver agrees with Justice Brown (whose opinion is thus, in effect, a majority one) and Justice Karakatsanis; and Justice Martin also concurs, but on grounds quite different from her colleagues’.

The issue in Mills had to do with the privacy interests that one might have in one’s online conversations. Justice Brown usefully sets out the facts. The case developed from

a sting conducted by a police officer, who posed online as a 14-year-old girl, with the intent of catching Internet child lurers. Over two months, [Mr.] Mills sent several messages, using Facebook and Hotmail. Eventually, he was arrested in a public park where he had arranged a meeting with the “child”, and was charged … with luring a child via the Internet. The entire operation occurred without prior judicial authorization. Using a screen capture software, the police introduced a record of the emails and messages as evidence at trial. [2-3; paragraph break removed]

Mr. Mills alleged a violation of his section 8 rights, and sought to have the evidence excluded. To decide whether his rights were indeed at stake, the Court must determine whether he had a subjective expectation of privacy in the subject-matter of the alleged search or seizure, and whether this expectation was objective. As usual, it is this last question ― as Justice Brown notes, a “normative question about when Canadians ought to expect privacy, given the applicable considerations” [20; emphasis Justice Brown’s] ― that causes difficulty here.


For Justice Brown, the key to the case is to be found in “the nature of the investigative technique used by police, and the nature of the relationship between the communicants [sic].” [20] In Justice Brown’s view, in light of children’s special vulnerability, “adults cannot reasonably expect privacy online with children they do not know” [23] ― or persons whom they believe to be such children. The relationship here was one between strangers ― since the purported child was in fact a creature of the police ― and the police, obviously, knew this before they started looking at the communications between that “child” and the accused. Unlike in cases where the police intercept or obtain communications between individuals the nature of whose relationship to one another they do not know, they can be certain of breaching no one’s reasonable privacy interests, and so do not need judicial authorization.

Justice Karakatsanis also finds that Mr. Mills could not reasonably expect the messages at issue to remain private. But in her view, that is because the state, acting through the undercover police officer, was the other party to the conversation, and one cannot expect one’s messages to remain private from the party to whom one deliberately sends them. Police officers do not infringe anyone’s privacy rights be speaking to them, even when they are undercover. Conversations via online messaging or email are no different. While the surreptitious recording of what is ostensibly a purely oral conversation makes what was meant to be ephemeral permanent and so has privacy implications, this issue does not arise when writing was the originally chosen medium of communication. Justice Karakatsanis alludes to concerns raised by interveners about police officers posing as persons to whom individuals might want to confide personal information, but decides that they need not be addressed in this case.

Justice Martin takes a different view of the privacy concerns raised by Mr. Mills. For her, the case raises the issue of “whether the state should be permitted to conduct warrantless surveillance of private, electronic communications, or whether that state surveillance should be regulated”. [72] The answer is that “[i]f the police wish to acquire a record of those communications, … such investigative activities must be regulated. The precise nature of such regulation is best left to Parliament”. [72]

Like Justice Karakatsanis, Justice Martin refers to the distinction between transient and permanent communications. But to her mind, the salient point here is that the distinction is being erased:

Online communications are inherently recorded. Where the intrusive technology used to be in the hands of the state, it is now in our back pockets. … [T]he electronic communications in the case at bar constituted both the conversation and the surreptitious electronic recording of that conversation. [86; 93]

Justice Martin endorses the concerns expressed in cases going back to the 1970s that people will, in effect, self-censor if they know that their words may be recorded and publicized. Indeed, Justice Martin worries about government “subjecting the public to surreptitious electronic surveillance on a mass scale”. [103] And since technology makes the existence of recordings inevitable, there need to be robust protections for their privacy. Nor can the state get around these protections by impersonating someone to whom a citizen may wish to speak privately; if it does so, the fact that the recorded words were addressed to the state agent is beside the point. On the contrary, “[t]he ability to fabricate alternative identities has never been more possible [sic] than it is now”, [106] and this reinforces the need for safeguards against the state taking advantage of this ability to elicit private information from citizens.

Justice Martin is also unimpressed by Justice Brown’s approach to the case. She thinks it inconsistent with the usual, content-neutral approach to section 8 cases. More importantly, saying that communications occurring between particular types of people ― such as those between an adult and a child who is a stranger to him or her ― are necessarily excluded from the scope of section 8 is inconsistent with that provision’s text, which guarantees rights to “everyone”, and

seeks to put courts in the business of evaluating the Canadian public’s personal relationships with a view to deciding which among them deserve Charter protection … Judicial (dis)approbation of an accused’s lifestyle has no place in the s[ection] 8 privacy analysis. [110]

Ultimately, however, Justice Martin finds that while the police breached the accused’s Charter right to be secure against unreasonable search and seizure, admitting the evidence they collected would not bring the administration of justice into disrepute. Thus she agrees with her colleagues about the result of the case, if little else. (As previously discussed here by Peter McCormick, Mills will count as a unanimous case in the Supreme Court’s statistics. It is anything but!)


To a striking degree, Mills illustrates Orin Kerr’s “equilibrium-adjustment theory” of constitutional protections against unreasonable search and seizure. In a nutshell, this theory posits that “[w]hen new tools and new practices threaten to expand or contract police power in a significant way” as compared to a (hypothetical) “year-zero” balance, “courts adjust the level of [privacy] protection to try to restore the prior equilibrium”. (480) Here, the tools and practices ― available both to the police and to the citizens (criminal and law-abiding alike) are online communication platforms that combine possible anonymity with the recording of conversations (and so, as just noted, the erasure of the demarcation between the spoken and the written word).

As equilibrium-adjustment theory predicts, Justices Brown, Karakatsanis, and Martin all frame their reasons as means to preserve or restore a balance of privacy that these developments threaten to disrupt. Thus Justice Brown insists that the means used by the police in this case “did not significantly reduce the sphere of privacy enjoyed by Canadians”. [20] For her part, Justice Martin argues that the “Court must identify the privacy interest [previous] cases sought to protect and ensure that it remains protected as the communication environment evolves”. [90] Justice Karakatsanis is perhaps a little less explicit about her own effort at equilibrium adjustment, by her insistence that written communications have not, in the past, been treated in the same way as oral conversations, and should not be so treated now is also in that vein, as is her concern that “[t]he alternative conclusion would significantly and negatively impact police undercover operations, including those conducted electronically”. [52]

But while all the judges in Mills agree on the importance of preserving the balance between privacy and the ability of police to investigate crime, it is not so clear where exactly that equilibrium really was. At equilibrium, was it the case that adults had no privacy rights in their relationships with children who were strangers to them, Justice Brown suggests? Or that the written word was not private in the way the spoke word was, as Justice Karakatsanis argues? Or, on the contrary, that all relationships, regardless of the parties’ status, and all conversations, regardless of the means used to carry them out, were entitled to privacy protections, as Justice Martin suggests?

Justice Brown’s attempt at defining equilibrium does not persuade me. As Steven Penney wrote in his (rather timelier than mine) comment on Mills on the University of Alberta Faculty of Law Blog, it is difficult, if not impossible, to tell when two persons are “strangers” to one another:

What degree of familiarity with an online persona is required before he or she ceases to become a stranger? Is it necessary to have met the person face-to-face in the offline world? Or is it enough to have had prior oral conversations (whether audio-only or video chats) online? And what, if any, degree of identity verification is required?

Meanwhile, the concept of “children” seems perfectly well-defined, in this context, as people under the age of 18, but this clarity might not be all it seems (because people lie about their age), and comes with its own set of problems. Are close-in-age relationships different? What about relationships between two minors? Why, indeed, draw a hard line at 18, especially outside the context of sexual crimes? Alternatively, must investigations of sexual crimes be treated differently than those of, say, terrorism?

One is tempted to suspect (Professor Penney, I think, hints at this too) that Justice Brown was looking for a very narrow basis on which to resolve this case. But the trouble is that an artificially narrow decision in a difficult case risks both being unprincipled and simply kicking the can down the road. Justice Brown’s opinion is in serious jeopardy on both these counts; indeed, I am inclined to declare it guilty on the second, even if a reasonable doubt might exist as to the first.

But what about the disagreement between Justices Karakatsanis and Martin? Perhaps this disagreement is the latest ― and probably not the last ― manifestation of a recurrent problem in cases about the application of section 8 of the Charter, which I described here when commenting on the Supreme Court’s decision in R v Marakah, 2017 SCC 59, [2017] 2 SCR 608, a case that considered the privacy of a text messaging conversation that one of the parties handed over to the police:

A number of legal issues arising out of new technologies, broadly speaking, have to do with the erasure of the once-clear line between the spoken and the written word. The former was (usually) spontaneous and fleeting; the latter (relatively) deliberate and permanent. But electronic communications combine spontaneity and permanence in a way to which many of us are still only getting used and with which the legal system, unsurprisingly, struggles.

In Marakah, a majority of the court (which included Justice Karakatsanis) held that a reasonable expectation of privacy in the conversation existed, so that the police could not look at it without prior authorization, even with the consent of one of the parties. I think that decision could also be understood as an attempt at equilibrium-adjustment, intended to preserve the previously undoubted privacy of the exact content of personal conversations. Professor Penney argues that Justice Karakatsanis now tries attempts to “effectively overturn” Marakah.

But I’m not sure that this is fair, or that the problem of the newfound permanence of conversations is really what is driving the disagreement between Justices Karakatsanis and Martin in Mills. Justice Karakatsanis does not deny that (in Professor Penney’s words) “Marakah … puts automatically recorded text conversations on the same plane as surreptitiously recorded oral ones”. Rather, she wants to hold on to a distinction that, as I see it, Marakah did not foreclose: that between the state obtaining, by whatever means, a conversation to which it was not a party (as it had done in Marakah), and that between the state itself in effect being a party to the conversation. In the latter case, Justice Karakatsanis argues, “[t]he fact that the conversation took place in a written form … does not transform it into a search or seizure”. [45] In other words, for Justice Karakatsanis, as for the Marakah majority, oral and electronic conversations are alike; those that involve a state representative and those that do not are not.

And, so far as this goes, I tentatively think that Justice Karakatsanis is right: considered by itself, the (electronic) conversation between a suspect and an undercover police officer in Mills is not a meaningfully greater intrusion on the suspect’s privacy than a conversation with an in-person informant would have been. Of course,there is a word-for-word record of that conversation. But, as Justice Karakatsanis says, the suspect knows this in advance. It’s all good and well to proclaim that the “reasonable expectation of privacy” standard is normative, not descriptive; it’s about what people ought to expect, not what they actually expect. But the standard cannot be entirely unmoored from the facts and, in particular, from the fact that we know and indeed use tools (such as search functions) that rely on the fact that the words of our conversations are recorded in real time.

That said, there is also a different equilibrium-adjustment issue in Mills, and it is this issue which, I think, really drives the disagreement between Justices Karakatsanis and Martin: namely, whether the ability of the police to engage in online undercover surveillance will radically expand the use of this investigative technique. Justice Martin think that it will, and so wants to forestall this expansion of police power. She envisions “mass scale” surveillance, previously “inconceivable … due to the practical resource constraints of [in-person] undercover police work” [104] and because of the much greater variety of fictitious personas investigators might be able to adopt online. Justice Karakatsanis is skeptical about this (as is Justice Brown). It is very difficult to say who is right here. Justice Martin, I think is speculating about the future prospects of mass surveillance; for now, at least, I don’t see the prospect of pervasive police stings using fake online personas as anything more than a dystopian fantasy, albeit, to be sure, not an entirely implausible one. And, in fairness, Justices Karakatsanis and Brown are speculating too, hoping that this dystopia does not come to pass, or at least that its development, should it begin in the earnest, will be able to be checked then.


So let me finish with a thought on one way to help prevent the dystopian future. It will perhaps seem naïve, but I think it is actually important. There are two ways to reduce the odds of police investigations unduly intruding on citizens’ lives. One is to constrain investigations once they are launched by limiting the use of certain techniques, requiring warrants, etc. Section 8 of the Charter, and equivalent provisions of other constitutional instruments, do this but, as cases such as Mills illustrate, constructing good doctrine in such cases is not easy. The other way to keep police in check is to have fewer crimes for them to investigate in the first place. As Justice Gorsuch, of the US Supreme Court, observed just a couple of days ago in Nieves v Bartlett,

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. (Slip op. 1-2; that’s pp. 24-25 of the PDF) 

And of course, before one can be arrested, one can be investigated. Perhaps the Canadian situation is not as bad as the American one (I don’t know enough to tell) but, if so, we must work to keep it that way. And here, the Charter ― just like its counterparts elsewhere ― is not going to help us. Only sustained political opposition to overcriminalization ― and, ideally, sustainted political support for decriminalization of a great many things currently considered criminal ― will do the trick.

When Dicey Smiles

The Supreme Court upholds immigration detainees’ right to habeas corpus

Earlier this month, the Supreme Court delivered its decision in Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 SCC 29, which dealt with the availability of habeas corpus to control the constitutionality of a person’s continued detention by Canadian immigration authorities. More precisely the issue was whether the detention review scheme set up by the Immigration and Refugee Protection Act (IRPA) and regulations made under it was ” is as broad and advantageous ” [5] to the detainee than a habeas corpus application. By a 6-1 majority, the Court held that although the IRPA (concededly) provide an adequate review scheme for challenges based on immigration law issues, it did not do so for those aimed at the unconstitutionality of the “length, conditions and uncertain duration” of immigration detention.


Justice Karakatsanis writes for the majority (the Chief Justice and Justices Moldaver, Gascon, Côté, and Brown). She begins by pointing out that habeas corpus, an ancient common law recourse, has long been the law’s principal remedy for controlling the legality of a person’s detention. Despite its antiquity, “[h]abeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape”. [20] Access to it is a constitutional right, and cannot be denied unless legislation has put in place a full alternative meeting the “as broad advantageous” test. The system of appeal in criminal cases is one example of such an alternative; the system of judicial review of the merits of immigration decisions leading to detention is another. Indeed, the Court had, in the past, made an obiter suggestion that review procedures under the IRPA replaced habeas corpus, but Justice Karakatsanis finds that they were “never intended to preclude habeas corpus review of every detention arising in the immigration context”. [31]

The question is whether the IRPA procedures are sufficient with respect to the particular type of claim raised by an applicant. In this case, the applicant “challenged the length, uncertain duration and conditions of his detention”. [57] The regulations made under the IRPA instruct the Immigration Division of the Immigration and Refugee Board, which is required to regularly review all immigration detentions, to take the length and expected duration of detention into account but, Justice Karakatsanis finds, they still fall short of providing a substitute habeas corpus review. For one thing, they place the onus on the detainee to justify release, rather than on the government to justify detention. Moreover, “[i]n practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances”. [62] Because judicial review in the Federal Court must focus on an individual decision on a periodic review, it may fail to address the previous decisions that form the basis of the one under review. Besides, it appears that judicial review never results in an order of release but, at most, in the matter being remitted to the Immigration Division for a re-determination. Finally, habeas corpus proceedings are likely to be much more prompt than a judicial review. Meanwhile, detention conditions are simply not among the grounds the Immigration Division is required to consider when deciding whether to continue detaining a person. This too is in contrast to habeas corpus review, where the court can look into all aspects of an ongoing detention.

Justice Abella dissents. In her view, the liberty interests of immigration detainees can and must be protected by a proper interpretation and application of the IRPA and its regulations. She is concerned that the majority’s decision will, in practice nullify the detention review scheme set up by the IRPA, as detainees turn to habeas corpus instead. “It is far more consistent with the purposes of the scheme”, Justice Abella insists, “to breathe the fullest possible remedial life into the” IRPA. [74] Jutice Abella emphasizes the obligation of administrative decision-makers under the IRPA “to exercise their discretion in accordance with the Charter“, [91] as well as the need to interpret the IRPA in way that maximizes constitutional protections. As a result, she rejects what she sees as the applicant’s “attempt[] to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon”. [142]

Specifically, Justice Abella disagrees with the majority, as well as with a number of lower-court decisions on issues such as where the onus lies in proceedings before the Immigration Division, whether these proceedings can rely on prior decisions as the basis of the case for ongoing detention, and the possibility of review of detention conditions. She argues for “[i]mporting Charter principles into the exercise of administrative discretion under IRPA“, [129] which translates into “an obligation to weigh the purposes served by immigration detention against the detained individual’s … Charter rights”. [130] Conditions of detention, as well as its length, can be part of this analysis, by means of reading them into a consideration of “alternatives to detention”, which is required by the regulations. Provided that the administrative decision-makers act consistently with the relevant Charter values, the IRPA scheme will be as effective in securing liberty as habeas corpus review.


The majority is right. Adopting Justice Abella’s approach would have requires the courts to ignore the way in which the IRPA scheme has been applied by the administrative decision-makers, to expect these decision-makers to suddenly discover a commitment to the Charter of which they have so far shown little evidence, and to also to re-write the applicable regulations. Her approach rests, moreover, on the fiction that administrative decision-makers ― in this case, members of the Immigration Division, which she describes as “an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters” ― are no different from superior court judges when it comes to upholding the constitution. Yet they are nothing more than civil servants, neither independent in any real way nor required to be legally qualified, and the conceit that they understand and can uphold the constitution as well as judges is nothing more than another instance of post-truth jurisprudence in Canadian administrative law. Of course, this is not true of the judges of the Federal Court, who may review the Immigration Division’s detention decisions, but since this review is supposed to be deferential, it is not clear how much protection it can really offer.

Despite Justice Abella’s protestations to the contrary, it is difficult to avoid the impression that, for her, the supposed integrity of an administrative scheme is more important than “assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty”. [72] She seems more preoccupied by likelihood of detainees bypassing the Immigration Division than by the established practice of the Immigration Division failing to give effect to their constitutional rights. Justice Abella’s lack of attention to the evidence of actual practice discussed by the majority and cheerful insistence that everything can be made right by high-minded exhortation are of a piece with her majority opinion in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909, which I discussed here, and they are no more justified now than they were then. As for Justice Abella’s suggestion that the applicable regulations can be effectively re-written in the name of upholding Charter values, it is certainly consistent with her professed rejection of the Rule of Law. But the “rule of justice”, which Justice Abella would like to see prevail, is unlikely to come about from the empowering of administrative decision-makers at the expense of independent courts.

Chhina nicely illustrates a point that this blog has taken up quite a few times. As I put it here,

there is much more to the administrative state economic than labour boards or arbitrators … People’s ability to enjoy their property or to practice their profession, their right to enter into or to remain in Canada, even their liberty … can depend on the way in which an official or a body exercising powers (purportedly) delegated by a legislature interpret the law.

Or, as co-blogger Mark Mancini wrote more recently, “in the 21st century, administrative agencies are armed with the most repressive powers of the state”. The administrative state is the state of prisons, of border control, of professional regulators determined to silence their members if not to impose official ideology on them. Justice Abella, in her naïve faith in the administrative state, is oblivious to its frequently oppressive reality.

Here is a question, by the way: what about Justice Karakatsanis? Nobody would have suspected her, I believe, of being a secret anti-administrativist. She joined Justice Abella’s Kanthasamy opinion, for instance and, more strikingly, was the author of the majority opinion in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, for whose insistence that administrative decision-makers are experts, no matter their real qualifications, I had originally come up with the “post-truth jurisprudence” label . But there is another tendency in Justice Karakatsanis’ opinions, notably her dissents in R v Fearon, 2014 SCC 77, [2014] 3 SCR 621 and R v Saeed, 2016 SCC 24, [2016] 1 SCR 518: a distrust of Supreme Court reminders to law enforcement about the importance of constitutional rights as means to secure these rights effectively. In Chhina, this distrust seems to have proved sufficiently strong to overcome Justice Karakatsanis’ normal faith in the administrative state.


Be that as it may, Justice Karakatsanis and a strong majority of the Supreme Court uphold the traditional remedy of habeas corpus, and of the independent courts as the dispensers of this remedy, as opposed to the second-rate ersatz purveyed by the administrative state. Justice Karakatsanis probably does not think of it in this way, but her decision also vindicates the thinking of that great bogeyman of progressive pro-administrativsts, A.V. Dicey. Contrasting the position of “countries possessing a constitution formed by a deliberate act of legislation” with that of the United Kingdom, Dicey wrote that in the former

you may say with truth that the rights of individuals to personal liberty flow from or are secured by the constitution. In England the right to individual liberty is part of the constitution, because it is secured by the decisions of the Courts, extended or confirmed as they are by the Habeas Corpus Acts. (117)

He emphasized the importance of “that inseparable connection between the means of enforcing a right and the right to be enforced” (118) ― well established, he argued, in the United Kingdom, but often neglected by “foreign constitutionalists”. For this reasons, although “[t]he Habeas Corpus Acts dedared no principle and define no rights … they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty”. (118) Such articles are only valuable if they are joined with “skill in providing means for giving legal security to the rights declared”. (118) Dicey would, I would like to think, be satisfied with the skill shown by the Supreme Court here.

NOTE: My friend Pierre Gemson (along with our fellow McGillian Ewa Krajewska) represented the Canadian Civil Liberties Association, which intervened in the case. Well done!

Concurring Opinion

Does the Charter’s “notwithstanding clause” exclude judicial review of legislation? Not quite!

Earlier this month, Grégoire Webber, Eric Mendelsohn, and Robert Leckey published an interesting challenge to what they termed “[t]he faulty received wisdom around the notwithstanding clause” over at Policy Options. Professor Webber, Mr. Mendelsohn, and Dean Leckey argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, by a legislature that enacts a statute does not fully insulate that statute against judicial review. Only the consequences of such review, not its availability, are affected. A court can still declare a statute protected by the “notwithstanding clause” to be contrary to the Charter ― albeit that the statute will continue to apply. This is an intriguing argument, and I think that it is correct.

Section 33(2) of the Charter provides that “[a]n Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.” Professor Webber, Mr. Mendelsohn, and Dean Leckey point out that “The word ‘override'”, often used to describe section 33, “appears nowhere and there is no mention of ‘judicial review’. Rather, the text of section 33 focuses on shielding a law’s ‘operation’.” It excludes the application section 52(1) of the Constitution Act, 1982, which would normally render a provision or statute inconsistent with the Charter “of not force or effect to the extent of the inconsistency”. But this does not prevent a court from declaring that an inconsistency exists in the first place.

I agree, and would add a further textual point. Section 33(1) authorizes the enactment of legislation that will “operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter”. One provision that is not subject to section 33 is section 24, the Charter‘s internal remedial provision. Pursuant to section 24(1),

[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Normally, if one’s rights are infringed by legislation, the “remedy that is appropriate and just in the circumstances” is a declaration of invalidity pursuant to section 52(1). The invocation of section 33 of the Charter changes “the circumstances”, however, so that ― for as long as it applies ― it is no longer constitutionally “appropriate” for a court to issue a remedy that affects the “operation” of the statute protected by the “notwithstanding clause”. But it would be wrong to make the leap from that incontrovertible truth to the much broader ― and textually unsupported ― proposition that no judicial remedy is “appropriate … in the circumstances” that include an operating “notwithstanding clause”. Rather, a court faced with a challenge to a statute protected by the “notwithstanding clause” must still strive to issue a “just” remedy within the constraints of section 33; that is to say, a remedy that addresses the violation of claimant’s rights (if any) without purporting to affect the operation of the statute.

As Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest, a bare declaration of inconsistency, which does not purport to render the inconsistent statute “of no force or effect”, would seem to be a remedy that is (however minimally) just, and constitutionally appropriate in circumstances that include an operating “notwithstanding clause”. As they note, the New Zealand Supreme Court recently came to a similar conclusion in Attorney-General v Taylor, [2018] NZSC 104. In Taylor (about which I wrote here), the majority held that a declaration of inconsistency was an appropriate remedy that can serve to vindicate the rights affirmed by the New Zealand Bill of Rights Act 1990 within the constraints imposed by section 4 of that Act, which prevents the courts from invalidating or refusing to apply inconsistent legislation. Even when no particular consequence flows from the declaration, it is still of value to the claimant, and granting it is in keeping with the courts’ role of saying what the law is.

This point is particularly apposite in the Canadian context, since the Charter ― even when section 33 is invoked ― is part of what section 52 of the Constitution Act, 1982 describes as “the supreme law of Canada”. As Professor Webber, Mr. Mendelsohn, and Dean Leckey point out, the courts have always stressed their responsibility for setting out the meaning of this law (well, always except when they follow Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395). This is so even in cases where, for one reason or another, the courts consider that their remedial powers do not reach as far as their power to articulate the law. Professor Webber, Mr. Mendelsohn, and Dean Leckey mention Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44, which is one such case; Reference re Secession of Quebec, [1998] 2 SCR 217 is another well-known example. The Canadian constitutional framework, even more than the New Zealand’s, is different from the Australian one, where the High Court held, in Momcilovic v The Queen, [2011] HCA 34, that the making of bare declarations of inconsistency was not a judicial function or even incidental to a judicial function, and so not something that the courts could constitutionally be asked to do.

Another point worth taking away from Taylor is that declarations of inconsistency should not be regarded as addressed to the legislature. Rather, they are vehicles by which the courts point out that the legislature has abused its powers, and the courts are prevented to do more about that fact than simply acknowledge it. The courts should not be thinking in terms of a dialogue with the legislature; it doesn’t matter whether the legislature is of a mind to take the courts’ judgment seriously. Professor Webber, Mr. Mendelsohn, and Dean Leckey suggest that ,”[i]nformed by the reasoned, evidence-based judgment of an impartial, independent court, the government might amend its policy or decide to allow section 33’s protection to lapse”. I suspect that this is a too optimistic ― certainly the New Zealand Parliament appears to be in no mind to remedy the inconsistency with the Bill of Rights Act identified in Taylor (which concerned the disenfranchisement of prisoners serving short sentences). But this doesn’t matter. It is the courts’ duty to say what the law ― and a fortiori the supreme law ― is, Parliamentary indifference be damned.

Professor Webber, Mr. Mendelsohn, and Dean Leckey’s argument that the invocation of section 33 of the Charter does not exclude judicial review, but only limits the consequences that can result from such review is novel, but I think that it is correct. They are right that, by its terms and within its constitutional context, “[s]ection 33 secures a law’s operation; it does not open a Charter black hole”. Given the Canadian provinces’ newfound penchant for relying on section 33, which I fear is only the start of a sinister trend, we may well soon find out what the courts will make of their idea.

I Said Don’t Do It

The federal government is wrong to involve Québec in the process of appointing the next Supreme Court judge

In 2014, after the Supreme Court invalidated the appointment of Justice Nadon to one of its seats reserved for Québec judges or lawyers, the federal government got the Québec government to propose a shortlist of candidates for the vacant-again position. This process resulted in the appointment of Justice Gascon to the Supreme Court. The federal government meant the outsourcing of the shortlist to be a one-off; the Québec government was hoping that it would create a precedent. Québec’s wishes were ignored when the next appointment to one its seats (that of Justice Côté) was made.

But now Justice Gascon is now retiring ― sadly, much before his time ― and a version of the process that produced his appointment is being brought back. As the Canadian Press reports,

[t]he federal and Quebec governments have reached what the province is calling a historic deal that ensures it will play an active role in the process of selecting the next Supreme Court of Canada justice from Quebec.

An advisory committee similar to those used for previous appointments made by the current federal government submit will then

submit a shortlist of candidates to the federal and provincial justice ministers. … [T]he premier of Quebec will also provide an opinion and forward a recommendation to the prime minister, who will make the final decision weighing the recommendation of the federal justice minister and Quebec’s input.

The provincial government’s role is, if I understand correctly, not as important as in the 2014 process, since it doesn’t extend to unilaterally determining the Prime Minister’s range of choices. But it is still significant. The province seems delighted. The Canadian Press writes that the provincial justice minister “called the deal precedent-setting” ― yes, again ― “saying it would allow the province to take a ‘direct and significant part’ in the judicial appointment”.

The rest of us should not be happy. In fact, we should be rather angry. I criticized the 2014 process at some length here, and I believe that that criticism is still applicable, albeit in a slightly watered-down form, to the new process. It is common enough for members of the Canadian chattering classes to claim that the federal government’s power of appointing Supreme Court judges without taking provincial preferences into account is a defect in our federal system. But this view is mistaken. Here’s part what I said in 2014 (with references updates):

[H]ow much of a flaw is it really that the federal government appoints judges unilaterally? In practice, the Supreme Court’s recent blockbuster decisions ― the one concerning the eligibility of Justice Nadon, Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 SCR 433 and that in the Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704 ―, as well as Reference re Securities Act, 2011 SCC 66, [2011] 3 SCR 837, which declared a proposed federal securities regulator unconstitutional belie any claim that the Supreme Court is biased in favour of the federal government.

And even at the level of theory, there is a good argument to be made for unilateral federal appointments. Canadian history has borne out James Madison’s famous argument in Federalist No. 10 that small polities are more vulnerable to “faction” and the tyranny of the majority than larger ones. Our federal governments have tended to be more moderate than provincial ones, and less susceptible to takeovers by ideological entrepreneurs from outside the Canadian mainstream, whether the Social Credit of Alberta or the separatists of Québec. Foreseeing this, the framers of the Constitution Act, 1867 gave the power of appointing judges of provincial superior courts to the federal rather than the provincial governments. It stands to reason that the judges of the Supreme Court, whose decisions have effect not only in one province, but throughout Canada, should a fortiori be appointed by the government more likely to be moderate and representative of the diversity of the views of the country ― that is to say, by the federal government.

Québec’s case is illustrative. The federal government presumably is comfortable with, or at least not very worried about, outsourcing the selection of potential Supreme Court judges to a relatively friendly, federalist government. Would it have felt the same way if the Parti Québécois ― not only separatist, but also committed to the infamous “Charter of Québec Values” (which the federal government had vowed to fight in court!) had won the recent provincial election? 

The latest developments sure give us some food for thought on this last question. The Parti Québécois, it is true, not only remains out of government, but is currently the fourth-largest party in Québec’s legislature. Yet its idea of purging the province’s public service of overtly religious persons ― especially if they are overtly religious in a non-Catholic way ― is alive, kicking, and in the process of being enacted into law, as Bill 21, by the Coalition Avenir Québec’s government. This is the same government, of course, that its federal counterpart wants to involve in the appointment of the judges who may yet be called upon to pronounce on Bill 21’s consistency with the constitution.

Back in the sunny days of 2015, when illusions about the current federal government being formed by the “Charter party” were still possible, the Prime Minister wrote the following to his Attorney-General:

[Y]our overarching goal will be to ensure our legislation meets the highest standards of equity, fairness and respect for the rule of law. I expect you to ensure that our initiatives respect the Constitution of Canada, court decisions, and are in keeping with our proudest legal traditions. You are expected to ensure that the rights of Canadians are protected, that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms, and that our government seeks to fulfill our policy goals with the least interference with the rights and privacy of Canadians as possible.

The “Mandate Letter” in which these wonderful commitments are set out is still on the Prime Minister’s website, although its original addressee was eventualy fired for acting like an actual Law Officer of the Crown and not a political weather-wane. But the same Prime Minister’s government is now going out of its way to hand over part of its constitutional responsibility for appointing the judges of Canada’s highest court to a provincial government bent not only on trampling on fundamental freedoms, but also on insulating its actions from review for compliance with the Charter. I should have thought that this is an odd way of respecting the Constitution of Canada, of ensuring that the rights of Canadians are protected, and of demonstrating the greatest possible commitment to respecting the Charter of Rights and Freedoms. But what do I know?

Well, I know this. Five years ago wrote that

[t]he power to appoint Supreme Court judges belongs to the federal government, and it alone, for good reason. … [T]he constitutional edifice built in 1867 (and 1875, when the Court was created, and then 1982 when it was, so it says, constitutionally entrenched) has weathered some great storms, and given us all shelter and comfort. It is in no danger of crumbling. Do not try to rebuild it.

Don’t do it. Just don’t.

Devaluing Section 33

What happens to “Charter values” when a statute invokes the “notwithstanding clause”―and what this might mean for Québec’s Bill 21

Here is a little puzzle I have thought of when reading an intriguing Policy Options post by Grégoire Webber, Eric Mendelsohn, and Robert Leckey. Their argument, in a nutshell, is that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause” by a legislature ― for example, by Québec’s legislature enacting
Bill 21, an anti-religious dress code ― does not prevent the courts from pronouncing the statute to which it applies contrary to the Charter. The “notwithstanding clause” does not insulate the statute from judicial review, but merely means that the statute continues to operate regardless of that review’s outcome. I am tentatively inclined to agree, and may have more to say on this soon. But for now, I want to raise a somewhat different issue.

If Bill said that public servants guilty of wearing religious symbols are to lose their jobs, or that overtly religious persons cannot be hired for the positions to which clause 6 applies, then that rule would be protected by the “notwithstanding clause”, and so would be its straightforward application. But in fact Bill 21 does not itself specify what happens if its prohibition, in clause 6, on “wearing religious symbols” is disregarded. Rather, clause 12 merely provides that “[i]t is incumbent on the person exercising the highest administrative authority” over those to whom that prohibition applies “to take the necessary measures to ensure compliance”. The taking of those necessary measures would presumably be an administrative decision, subject to judicial review. And this is where things get interesting, in the sordid way in which anything having to do with judicial review of administrative decisions is interesting.

In a sane system of judicial review of constitutionally suspect administrative decisions ― like the one set out in Slaight Communications v Davidson, [1989] 1 SCR 1038 ― a decision to discipline, and eventually to dismiss, a public servant for breaching the prohibition on wearing religious symbols would, I think, have to be valid, so long of course as Bill 21 is protected by the “notwithstanding clause”. Such a decision is impliedly authorized by the statute, so to challenge its constitutionality one would need to challenge the statute itself, and the “notwithstanding clause” means that, whatever other consequences that challenge may have, the statute continues to operate.

But we no longer have a sane system of judicial review of administrative decisions that raise Charter issues. (I should make clear that I have grave misgivings about Slaight‘s correctness on the merits; it is only its approach to judicial review that I approve of.) What we have, instead, is the approach first set out in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, under which the issue is not whether an administrative decision is authorized by a statute interpreted so as to comply with the Charter, but whether it gives as full an effect to “Charter values” in light of the statute’s objectives. How the “notwithstanding clause” fits into this scheme is not at clear.

The question is, does the application of the “notwithstanding clause” to a statute suspend the application of “Charter values” to decisions authorized by that statute? And the answer to that question is by no means obvious. Doré itself, of course, is silent on the matter, as are its successors Loyola High School v Quebec (Attorney General), 2015 SCC 12, [2015] 1 SCR 613 and Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293. So too is the text of section 33 of the Charter, which speaks of legislation “hav[ing] such operation as it would have but for the provision of th[e] Charter” (emphasis mine) in respect of which section 33 is invoked. The Charter says nothing about “values”.

Are these values the same as Charter rights, in which case they might be ousted along with the “provisions” muted by the invocation of the “notwithstanding clause”? The cases at least suggest otherwise. In particular, in Loyola, the majority spoke of “Charter protections” as a category encompassing “values and rights” [35; emphasis mine], suggesting that values and rights are different. It added that “Charter values [are] those values that underpin each right and give it meaning”. [36] And so, one might at least make a serious argument to the effect that the values remain intact regardless of the temporary inapplicability of the Charter‘s provisions (and rights), and that Doré‘s injunction that “administrative decisions are always required to consider fundamental values” [35; emphasis in the original] remains in full force, notwithstanding the “notwithstanding clause”.

The reluctance of the framers of Bill 21 to spell out, in the legislation itself, the unpalatable consequences they presumably intend, combined with the perverseness of the administrative law doctrines endorsed by the Supreme Court, may thus result in the nullification of one of the bill’s most significant features ― its attempt to exclude judicial scrutiny. I hope that no one doubts my distaste for Bill 21. I have denounced its illiberalism here, arguing that Quebeckers ― and the rest of us ― need to stop fearing “the way in which others might use their liberty if we do not preemptively coerce them”. And I have myself defended what some might think of as a workaround designed to challenge the constitutionality of Bill 21 despite its invocation of the “notwithstanding clause”. And, more broadly, I have long argued that the “notwithstanding clause” would be best left untouched. But I cannot say I find the idea of relying on “Charter values” to subvert the invocation of the “notwithstanding clause”, even one as distasteful as Bill 21’s, especially satisfactory either. The whole concept of “Charter values” is a figment of the judicial imagination, and it usually serves, no matter the protestations of the TWU majority, to water down constitutional rights and to subvert the authority of the supreme law more broadly.

One should note, also, that even if the argument that Charter values continue to apply despite the “notwithstanding clause” is successful, there would remain the issue of weighing these values against statutory objectives. I will not say much about this here, beyond observing that there is glaring conflict between the ostensible aims of Bill 21 as a whole, stated in its clause 4, which are “(1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion”, and its real aims, and in particular, the aim of the ban of wearing religious symbols. I am not sure how a court would deal with this, but here again the reluctance of the framers of of Bill 21 to forthrightly admit that they are trying to simply purge Québec’s officialdom of overtly religious individuals may well open a space for judicial subversion.

It may yet be, then, that the story of Bill 21 will turn out to have something that will look, from the standpoint of the protection of individual rights, more or less like a happy ending. But we should not let ourselves be deceived. Two wrongs do not make a right. One can hardly make up for the Québec legislature’s unwillingness to be bound by constitutional law by exploiting similar unwillingness on the part of the Supreme Court. And maybe, just maybe, the court would in fact recoil before the prospect of following the implications of the Doré line of cases all the way to the nullification of section 33 of the Charter. Who knows ― they might even seize the opportunity for getting rid of Doré and restoring some sanity to the Canadian law of judicial review.

To be honest, I’m not sure which outcome is more desirable. On the one hand, I want to see Bill 21 undone. On the other, although the Québec legislature would have no cause for complaint if it is tripped up by its own cowardice, those of us who care about the Rule of Law could not happy by its further subversion, even if we like the immediate results. But then again, I have the luxury of worrying about the Rule of Law from a distance. Those personally affected by Bill 21 may feel differently about this.

Nothing to Celebrate

Québec’s irreligious dress code proposal isn’t an opportunity to extol democracy, or to do away with judicial review of legislation

In a recent post at Policy Options, Joanna Baron and Geoffrey Sigalet argue that the invocation of section 33 of the Canadian Charter of Rights and Freedoms, the notorious “notwithstanding clause”, to insulate Bill 21, Québec’s proposed legislation making irreligion the province’s official creed from judicial scrutiny “is an opportunity for democratic renewal” in discussions about matters constitutional. In doing so, they come another step closer to overtly taking a position that has always been implicit in the arguments of many of section 33’s fans: that the enactment of the Charter was a mistake. Indeed, they go further and, intentionally or otherwise, make the same suggestion regarding the courts’ ability to enforce the federal division of powers under the Constitution Act, 1867. It is brave of Ms. Baron and Dr. Sigalet to make this argument with Bill 21 as a hook. Yet courageous though it is, the argument is not compelling.

Ms. Baron and Dr. Sigalet dismiss claims to the effect that, while section 33 prevents the scrutiny of Bill 21 for compliance with the Charter’s guarantees of religious freedom and equality, other constitutional arguments remain available. (I have presented one such argument, building on Maxime St-Hilaire’s work, here.) To them, they are no more than a “legalistic … distraction”. Opponents of Bill 21 should, rather, be “making the democratic case for protecting religious freedom”. Indeed, we should be celebrating “the legislative process … with its tradition of active debate”, which allows Québec to take a “collaborative approach to fleshing out important rights”. We should also be celebrating street protests, open letters, and even threats of disobedience issued by some of the organizations that will be responsible for applying Bill 21 when it becomes law. After all, letting the courts apply the Charter “can wind up overriding rights in ways similar to Bill 21”, while causing “an atrophying of the democratic process as a forum where rights are debated, articulated and enacted”. In short, “rights should not be taken for granted, nor left to judges. They require the thoughtful participation of the people themselves.”

I agree with this last point. Rights are unlikely to enjoy much protection in a political culture in which they are seen as something of concern to the courts alone. In one way or another ― whether through judicial acquiescence or through legislative override ― whatever constitutional protections for rights might exist in such a society will be cast aside. Québec is an excellent example of this. And, for my part, I have made a political, as well as a legal, case against Bill 21 here. The two can, and should, coexist.

And this is where Ms. Baron and Dr. Sigalet go badly wrong. In their headlong rush to praise politics, they denigrate the law. Without seriously addressing their merits, their dismiss plausible (albeit, to be fair, not unassailable) legal arguments as mere legalism. This applies not only to an argument based on the Charter, but also to one based on federalism. Presumably, we should count on the political process to sort out which of two different but equally democratic majorities should have the ability to impose its religious views on Canadians ― or any other issues about which order of government has the ability to legislate with respect to a particular subject. Similarly, Ms. Baron and Dr. Sigalet appear to see no harm in state institutions, such as school boards, threatening to act lawlessly, the Rule of Law be damned.

Ms. Baron and Dr. Sigalet also take a remarkably optimistic view of the political process. They say not a word of the fact that the “active debate” for which the praise Québec’s legislature may well be curtailed by the government. They call for democratic persuasion in the face of a law that is designed to impose few, if any, burdens, at least in the way in which it is likely to be enforced, on Québec’s lapsed-Catholic majority, and great burdens on a few minority groups that have long been subjects of suspicion if not outright vilification. A thoughtful advocate of democratic control over rights issues, Jeremy Waldron, at least worried in his “The Core of the Case against Judicial Review” about the possibility that political majorities will put their interests above the rights of minority groups. “Injustice”, he writes, “is what happens when the rights or interests of the minority are
wrongly subordinated to those of the majority”, (1396) and we may legitimately worry about the tyranny of the majority when political majorities dispose of the rights of minority groups without heeding their concerns. Ms. Baron and Dr. Sigalet show no sign of being so worried, or of entertaining the possibility that the Québec society’s commitment to religious liberty is fundamentally deficient.

To be sure, Professor Waldron (rightly) reminds us that minorities “may be wrong about the rights they have; the majority may be right”. (1397) He also insists that, in societies genuinely committed to rights, it will rarely be the case that questions of rights will provoke neat splits between majority and minority groups. Still, we should be mindful of his acknowledgement that it in is cases like Bill 21, where majorities focus on their own preoccupations and are willing to simply impose their views on minorities, that the arguments in favour of judicial enforcement of constitutional rights protections are at their strongest. There is also a very strong argument ― and a democratic argument, too ― to be made in support of judicial enforcement of the federal division of powers, which serves to preserve the prerogative of democratic majorities to decide, or not to decide, certain issues.

Ms. Baron and Dr. Sigalet do not recognize these arguments, which leads me to the conclusion that they see no room for (strong-form) judicial review of legislation, under any circumstances. I believe that this position, at least so far as the Charter is concerned, is implicit in most if not all of the recent attempts to rehabilitate section 33. If one argues that we should trust legislatures to sometime come to views about rights that deserve to prevail over those of the courts, indeed perhaps to correct judicial mistakes, then why trust them in some cases only, and not in all? The application of this logic to federalism isn’t as familiar in the Canadian context, but in for a penny, in for a pound, I suppose.

Yet in my view, this is a mistake. As the circumstances surrounding Bill 21 show, politics is often little more than the imposition of the preferences of one group on another by brute force. This is as true in a democracy as it is under any other political regime. Democracy makes it more likely (although it does not guarantee) that the triumphant group will be a majority of the citizenry, which may or may not be a good thing. Democracy means that governmental decrees are, in principle (although not always in practice) reversible, and this is most definitely a good thing, and the reason why democracy is the least bad form of government. But I see no basis for pretending that democratic politics is somehow wise, or that it fosters meaningful debate about rights or other constitutional issues. Yes, there are some examples of that, on which opponents of judicial review of legislation like to seize. But these examples are few and far between and, more importantly, nothing about the nature of democratic politics makes their regular occurrence likely.

And of course it is true that strong-form judicial review of legislation, or judicial enforcement of rights (and of federalism) more broadly, sometimes fails to protect rights as fully as it should. I’m not sure that Dr. Sigalet and Ms. Baron’s chosen example, Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, is especially compelling ― I think the case was wrongly decided, but the majority’s position at least rested on the sort of concern that can in principle justify limitations on rights. The more recent decisions in Law Society of British Columbia v Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 and the companion Ontario case are much worse in this regard, and provide compelling examples of an abject judicial failure to enforce the rights of a (rightly) maligned minority against an overbearing majority. Judicial review provides only a chance that what the political or administrative process got wrong will be set right, not a guarantee. But there is no compelling reason to think that the (usual) availability of judicial review causes the political debate about rights or other constitutional issues to atrophy. After all, as I have argued here, politicians are just as wont to ignore the constitution when they know or think that their decisions are not judicially reviewable as when they know that they are.  

In short, I am all for making the case for rights, and even federalism, outside the courtroom, and in ways that do not only speak to those carrying the privilege, or the burden, of legal training. I am all for making submissions to legislatures to try to prevent them from committing an injustice ― I’ve done it myself. And I’m all for protest, and even for civil disobedience by ordinary citizens when the politicians won’t listen ― though I have serious misgivings about officials declining to follow the law, partly for the reasons co-blogger Mark Mancini outlined here, and partly due to concerns of my own. But if the legally-minded among us should not neglect the political realm, then the politically-inclined should not disparage the law. The would-be prophets of popular sovereignty ought to remember Edward Coke’s words in his report of Prohibitions del Roy :

the law [is] the golden met-wand and measure to try the causes of the subjects; and which protect[s] His Majesty in safety and peace: with which the King was greatly offended, and said, that then he should be under the law, which was treason to affirm, as he said; to which I said, that Bracton saith, quod Rex non debed esse sub homine, sed sub Deo et lege.

This is no less true of today’s democratic sovereign, though it be no less apt to stand on its own dignity as James I.

Can an agency choose not to enforce Bill 21?

Last week, the English Montreal School Board [EMSB] announced that it is refusing to to implement Bill 21, introduced by the Quebec government. The law would ban workers in the public sphere in positions of authority from wearing “religious symbols” while at work. The government, apparently cognizant of the challenges this could raise under the Canadian Charter of Rights and Freedoms, signalled its intention to invoke the notwithstanding clause to immunize its law from constitutional scrutiny by the judiciary.

In pre-emptively declining to implement the law, the EMSB invoked constitutional objections under the Charter against the ban:

Vice-Chair Joe Ortona, who drafted the resolution, said that the EMSB believes this proposed legislation would be contrary to paragraph 2 (a) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom of conscience and freedom of religion and contrary to paragraph 2 (b) of the Canadian Charter of Rights and Freedoms which guarantees everyone’s right to freedom thought, belief, opinion and expression.

Furthermore Mr. Ortona said that the EMSB believes this proposed legislation would be contrary to subsection 15 (1) of the Canadian Charter of Rights and Freedoms which guarantees that everyone is equal before and under the law and guarantees the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on religion and contrary to section 3 of the Charter of Human Rights and Freedoms which guarantees freedom of conscience, freedom of religion, freedom of opinion, and freedom of expression.

Quite aside from the merits of the issue, there is a legitimate question of administrative law, here: can an administrative agency like a school board, empowered by statute, simply decline to enforce a law that it believes is unconstitutional? More specifically, can the agency decline to enforce the law if the law invokes the notwithstanding clause? Whatever the answer is, should agencies be able to come to their own determinations of constitutional law?

The place to start is probably the Martin and Conway line of cases. The core issues in those cases were the conditions under which an administrative agency can choose not to apply statutory provisions in its enabling statute that it considers to be unconstitutional—and if so, whether there is a power to issue personal remedies under the Charter. So these cases go, if an agency has the express or implied power to decide questions of law under the challenged provision (see Martin, at para 37), then it presumptively has the power to determine questions of constitutional law. The implied inquiry looks to a number of considerations (see Martin at para 41):

Relevant factors will include the statutory mandate of the tribunal in issue and whether deciding questions of law is necessary to fulfilling this mandate effectively; the interaction of the tribunal in question with other elements of the administrative system; whether the tribunal is adjudicative in nature; and practical considerations, including the tribunal’s capacity to consider questions of law. Practical considerations, however, cannot override a clear implication from the statute itself, particularly when depriving the tribunal of the power to decide questions of law would impair its capacity to fulfill its intended mandate. As is the case for explicit jurisdiction, if the tribunal is found to have implied jurisdiction to decide questions of law arising under a legislative provision, this power will be presumed to include jurisdiction to determine the constitutional validity of that provision.

The presumption can be rebutted by the party seeking to dislodge the Charter jurisdictional presumption, by pointing to an express or implied withdrawal of authority to decide constitutional questions: the concern is discerning whether there is an intention to “exclude the Charter, or more broadly, a category of questions of law encompassing the Charter, from the scope of the questions of law to be addressed by the tribunal (Martin, at para 42).

So the question at the outset for the EMSB is whether it has been conferred the ability to decide questions of law, either explicitly or impliedly. The enabling statute for the EMSB is the Education Act. Under s.111 of that statute, the province of Quebec is divided into “two groups of territories,” with one group constituting English school boards, like the EMSB. The EMSB, under the statute, is “a legal person established in the public interest” (s.113). There is at least some reason (even if weak) to believe under the Education Act the EMSB has the power to decide questions of law, but only a limited one pertaining to its particular mission under the Education Act. For example, under the statute, the EMSB has the power to “ensure that the basic school regulation established by the Government is implemented” (s.222) and can exempt students from that basic regulation “[f]or humanitarian reasons or to avoid serious harm to a student” (s.222). Assume for now that these rather vague and limited provisions confer a general power to decide questions of law: that general power, interpreted in light of the text, context, and purpose of the Education Act as it relates to school boards, would probably only relate to the organization of quality educational services (s.207.1), although one could argue that the same concern could apply to the context of Bill 21.

Even if this could be seen as an implicit signal of constitutional jurisdiction under the Education Act, it is a bit orthogonal to the core interpretive question. Martin, the key case on point, says that the real question is whether the EMSB has power to decide questions of law under the challenged provision in its enabling statute (see paras 27-28, 35). But here, there is not only no challenged provision yet, but it is not the EMSB’s enabling statute. This presents two further problems: can agencies issue prophylactic constitutional rulings? And even if they can, can they do so by choosing not to apply a statute that is not their enabling statute?

It would seem odd, in light of the Supreme Court’s cases, to suggest that an administrative agency can prophylactically choose not to apply a law that otherwise applies to it. Administrative agencies are creatures of statute, and so are subject to the statutory conditions that the legislature imposes on them. Under Bill 21, the terms of the statute clearly apply to school boards (see Schedule I, (7)). Short of some dispute arising within the confines of the statutory regime created by the Education Act, there does not seem warrant for the EMSB to go out on a limb and refuse to apply a statute that has yet to have created any particular problems within its statutory jurisdiction. This seems to be what Abella J suggested in Conway, where she concluded that tribunals could “have the authority to resolve constitutional questions that are linked to matters properly before them” (Conway, at para 78).

More important than this issue, though, is the idea that the EMSB can choose not to apply a statute that is not its enabling statute. The main Supreme Court cases dealing with this issue, even the ones that predate Martin, involve the enabling statute of the decision-maker under consideration (Conway, at para 49: “These cases dealt with whether administrative tribunals could decide the constitutionality of the provisions of their own statutory schemes.” Consider the cases on this point: in Cuddy Chicks, the issue was whether the Ontario Labour Relations Board could determine the constitutionality of a provision in the Labour Relations Act. In Martin, the question was whether the Nova Scotia Workers’ Compensation Appeals Tribunal could decide a s.15 Charter claim under the Workers’ Compensation Act and associated regulations. All of these cases involved claims tied to the regime under which the decision-maker was established, with cases “properly before them.” And this makes sense: it would be odd for Parliament to delegate power to an administrative agency, confined by a statutory scheme, to pass on the constitutionality of other statutory provisions that may only tangentially be related to the part of the Education Act (for example) that the EMSB must apply.

Even if none of this were true, the notwithstanding clause effectively limits any independent choice an agency could have about the constitutionality of the statute under which it is invoked. For one, even if one could impute an intention to the legislature that presumptively allows the EMSB to make constitutional determinations, the notwithstanding clause is a good reason to say that the legislature has rebutted that presumption with respect to the particular category of question at issue here: this is the upshot of Martin and Conway. More fundamentally, a use of the notwithstanding clause cannot be legally questioned by any actor in the system, including the judiciary. The EMSB cannot legally second-guess the choice of the provincial government (its master) to insulate legislation from constitutional scrutiny. The invocation of the notwithstanding clause flows down the entire machinery of the state, and whether we like it or not, its use is legally justifiable by the fiat of the legislature.

To my mind, the use of the notwithstanding clause also renders null any arguments that one could make that the EMSB is justified in its prophylactic ruling because of an abstract notion of “Charter values.” Despite the fact that the spectre of Charter values is increasingly being called into question, and the precedential force of cases like Trinity Western should be questioned because of the lack of reasoning on the point (see, embarrassingly for the TWU majority, para 59), the notwithstanding clause is a legislative command that compels executive actors to ignore the Charter when implementing the law in question. There would be no point in invoking the notwithstanding clause if administrative actors could choose to “independently” opine on the constitutionality of laws in the face of it. The lightning rod for a consideration of Charter values is discretion, and the notwithstanding clause neutralizes any discretion at all on the constitutional question.

To my mind, there is little warrant for the EMSB to prophylactically say it will not enforce Bill 21, given its limited statutory domain and the use of the notwithstanding clause. And this is likely how it should be. It is one thing for an administrative agency, when implementing a statute in the context of a concrete dispute, to have to pass on the constitutionality of a statutory provision—in its own statute—in order to resolve the dispute. In that case, there are at least colourable reasons why the agency should have the power to do this: if one believes in the idea that agencies have expertise on matters arising within the confines of their statute, one could say that they could also have expertise on Charter matters arising in relation to that same statute. One could also say that the legislature delegated to the agency the power to make Charter determinations, even through the imperfect proxy of a general power to decide questions of law. These same justifications lose their force when considering statutory provisions outside the enabling statute. While Bill 21 certainly does affect the realm of the EMSB, the EMSB is not conferred a general power to make constitutional determinations arising under other statutes.