Yes They Can II

Does existing legislation allow a referendum on electoral reform?

The former Chief Electoral Officer, Jean-Pierre Kingsley, has caused some ongoing confusion on Twitter about whether a referendum on electoral reform would be legal. The source of this confusion is section 3 of the federal Referendum Act, which provides that

Where the Governor in Council considers that it is in the public interest to obtain by means of a referendum the opinion of electors on any question relating to the Constitution of Canada, the Governor in Council may, by proclamation, direct that the opinion of electors be obtained by putting the question to the electors of Canada … at a referendum called for that purpose.

Mr. Kingsley appears to believe that that the desirability of electoral reform is not a “question relating to the Constitution of Canada.” As Emmett Macfarlane has pointed out, he is wrong.

The electoral system is a constitutional matter. Substantively, it is one of the fundamental issues relating to the organization of one of the branches of government (or, more precisely, of a component of the legislative branch). Formally, electoral arrangements were originally provided for in the Constitution Act, 1867 ― federal ones, in Part IV, “Legislative Power,” under the heading “The House of Commons,” (notably at sections 40 and 41) and those of Ontario and Québec in Part V, “Provincial Constitutions,” under the heading “Legislative Power” (notably at sections 70, 80, 83, and 84). To be sure, these provisions partly referred to existing electoral legislation, and enable Parliament and the provincial legislatures to enact such legislation in the future, but they show that the Fathers of Confederation understood that the electoral system is a constitutional issue.

Now, as I have argued here, electoral reform does not require a constitutional amendment enacted with provincial support. It can be implemented by Parliament legislating alone. But that’s because section 44 of the Constitution Act, 1982 provides that “[s]ubject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to … the … House of Commons.” Electoral reform is an amendment to the constitution “in relation to the House of Commons.” So long as it does not affect “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented [in 1982]” or “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” protected respectively by paragraphs 41(b) and 41(a) of the Constitution Act, 1982, such an amendment can and must be made by an Act of Parliament. Yet the fact that it does not require provincial consent or participation does not make it any less of a constitutional amendment, and its desirability any less of “an issue relating to the Constitution of Canada.”

The only way a referendum on electoral reform ― or any other constitutional issue ― might be illegal, and indeed unconstitutional, is if holding it is seen to be a modification to the amending formula set out in Part V of the Constitution Act, 1982 (which includes section 44). The Supreme Court’s rather vague opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704, which held among other things that ostensibly consultative elections to the Senate would be unconstitutional modification of the constitution’s “architecture” leaves that possibility open ― depending on what “architecture” means. In the interests of time, I will assert ― and perhaps defend my assertion at some later date ― that the Senate Reform reference does not preclude a referendum of electoral reform, but I think that the matter is not free from doubt.

Be that as it may, it is quite clear that the Referendum Act itself is not an obstacle to such a referendum. Of course, as others have pointed out, Parliament could also legislate to permit such a referendum, whether enacting a statute for that specific purpose in derogation of the Referendum Act, or amending the Referendum Act itself. But such legislation is not necessary. Electoral reform is a constitutional issue and can be the subject of a referendum under existing legislation.

A Third View on Legislating Two Languages at the SCC

In the last number of days, Professor Grammond and incoming AUT Law School lecturer (and my very generous blogging host) Léonid Sirota have posted thoughtful analyses of whether Parliament can legislate a requirement that judges of the Supreme Court understand French and English without the assistance of translation. Grammond argues yes; Sirota says no. The two authors differ in their readings of the Supreme Court Act Reference and, specifically, in their interpretation of what is captured by “composition of the Supreme Court of Canada” in section 41(d) of the Constitution Act, 1982. Both, in my view, are right in some respects, but wrong in others.

In any amendment analysis, the first question is always: is the proposal an “amendment to the Constitution of Canada” within the meaning of Part V? In other words, does the proposal change an entrenched part of the Constitution of Canada? If yes, then we’re in Part V territory. If not, the proposal can be enacted through ordinary legislative channels. A legislated French-English bilingualism requirement would certainly be a change to the existing eligibility criteria for judges of the Supreme Court. The trickier issue is whether such a requirement is a change to an entrenched part of the constitution.

Grammond argues that it is not. In his view, section 41(d) does not shield all aspects of the Court’s composition from unilateral change, only a protected core of matters related to composition. Looking to the framers’ intent and the fundamental character of the Court, he contends that “composition” in section 41(d) only protects Quebec’s representation on the Court and the Court’s role as the guardian of the constitution against court-packing and abolition, not eligibility criteria at large. Grammond contends that a legislated bilingualism requirement would not affect anything within this protected core and therefore does not trigger section 41(d). He applies the same logic to section 42(1)(d), the provision that subjects amendments in relation to “the Supreme Court of Canada” to the 7/50 procedure. He contends that the core of section 42(1)(d) captures the Court’s role as the final court of appeal and its independence. Again, a bilingualism requirement would not affect either of these “fundamental characteristics”: “Requiring bilingualism does not detract from the Court’s role as a final court of appeal and does not jeopardize its independence”. As a result, the 7/50 rule does not apply and Parliament can pursue a bilingualism requirement through the ordinary legislative process.

Sirota disagrees. He challenges Grammond’s reliance on framers’ intent, asking us to focus instead on the text of Part V and what ‘composition’ “actually means”. Sirota admits that it is not obvious that ‘composition of the Supreme Court’ includes eligibility for membership on the Court as opposed to just the number of judges and their place of origin. But the Supreme Court has said that it does and so we’re stuck. Sirota is also uncomfortable with one implication of Grammond’s approach, namely that some but not all eligibility criteria would be captured by ‘composition’. Sirota doubts whether this approach is either “preferable or even tenable” as a matter of textual interpretation. It seems that on this reasoning, the Supreme Court Act Reference confirms that the current set of eligibility criteria for appointment to the Court is entrenched; a bilingualism requirement would alter the status quo; therefore, legislating bilingualism amounts to a constitutional amendment.

With much respect, I am not fully persuaded by either account. One reads ‘composition’ too broadly, the other too narrowly.

In hard cases (that is, in cases that don’t involve an explicit addition or deletion of words from the constitutional texts), determining whether Part V is triggered calls for a qualitative assessment. This is in line with Grammond’s approach. On my reading of the jurisprudence, when it comes to Court reform and determining whether sections 41(d) or 42(1)(d) apply, the key question is: does the proposal make a ‘qualitative difference’ or ‘substantive change’ to the constitutionally-protected character of the Court? The Supreme Court Act Reference and the Senate Reference provide some insight into the content of this constitutionally-protected character: it is concerned with the “essence of what enables the Supreme Court to perform its current role” (SCA Reference, para 101) and those matters that are “crucial to [the Court’s] ability to function effectively and with sufficient institutional legitimacy as the final court of appeal for Canada” (SCA Reference, para 93). In other words, this constitutionally-protected character captures the Court’s ‘fundamental nature and role’ and the features of the Court that bring this fundamental nature and role to life, but not the routine matters associated with the maintenance and operation of the Court. In addition, it protects the Court’s “competence, legitimacy, and integrity” and its “proper functioning” as the final appellate court for Canada, but not all aspects of the Court’s institutional design (SCA Reference, paras 93 and 101).

What does this mean for the interpretation of ‘composition’ in section 41(d)? It means that section 41(d) does not capture all matters dealing with the composition of the Court or the eligibility of potential appointees. The reasoning in the Supreme Court Act Reference does not dictate otherwise and this is where Sirota’s reasoning seems to go too far. Admittedly, the majority concluded that “the notion of ‘composition’ refers to ss. 4(1), 5 and 6 of the Supreme Court Act, which codify the composition of and eligibility requirements for appointment to the Supreme Court as they existed in 1982” (para 91). But it does not follow that any change to the existing eligibility criteria triggers the amending formula. First, the majority notes that only a “substantive change” to the existing criteria will trigger the formula (para 105). Second, the majority ties its conclusion on entrenchment to the principle that the composition of the Supreme Court is essential to its ability to function effectively and legitimately, and the scope of ‘composition’ should be defined as giving effect to that principle.

In my view, it follows that section 41(d) covers matters relating to composition that are constitutionally significant and the eligibility criteria tied to them. That is, it covers only those aspects of composition and eligibility that are necessary to ensure the Court’s competence, legitimacy, integrity, and proper role and functioning. From the Supreme Court Act Reference, we know that this understanding of ‘composition’ captures the requirement that Quebec be meaningfully represented on the Court. Accordingly, legislation altering the existing eligibility criteria in ways that would make a qualitative difference to Quebec’s representation would trigger section 41(d). By way of another example, this understanding of ‘composition’ would likely also capture the requirement that the judges be drawn from the community of people with legal training and expertise. Such experience is important for the Court to fulfill its role as Canada’s final appellate court. Therefore, legislation altering the existing eligibility criteria to allow for the appointment of people without any legal training or expertise would trigger section 41(d). By contrast, a proposal to amend section 5 of Supreme Court Act to allow the appointment of advocates of at least 9 years standing at the bar of a province (instead of 10) likely would not; nor should it.

Where does this analysis leave us when it comes to a statutory bilingualism requirement for judges of the Supreme Court? On this point, Grammond does not go far enough and I agree with Sirota – implementing such a requirement demands a constitutional amendment. In part, requiring French-English bilingualism for judges of the Supreme Court would be directed at enhancing the Court’s legitimacy within a federal constitutional culture that is officially bilingual and in its constitutional role as the final court of appeal for all legal issues and for all Canadians. Further, while a bilingualism requirement might not impact the proportion of judges from Quebec on the Court’s bench, it would add an eligibility criterion that narrows the pool of potential appointees, thereby calling for an assessment of whether this aims to alter the meaning of the Court’s composition in any other ways tied to constitutional values of legitimacy and representation. At the same time, a bilingualism requirement would be a qualitative change to the current legislative standards for – and accompanying eligibility criteria directed towards – judicial competency and institutional integrity of the Court. It would suggest that appointing judges with a legal background is no longer sufficient to ensure the Court can fulfill its role and preserve its integrity; rather, proficiency in both languages is needed.

A discussion of representation and language on the Court leads to a final note. When talking about a bilingualism requirement, the amendment issue is interesting and important. It helps us see the gaps in the doctrine of Part V and the difficulties in determining both what is entrenched in the Constitution of Canada and what amounts to an amendment. In the context of Court reform, it is an opportunity to think through the significance and limits of the Court in Canada’s constitutional order, as well as what we should expect of our political actors charged with appointing its judges and pursuing reform. (Some of my thinking on the Court in the constitutional order and on constitutional amendment as an opportunity rather than a hindrance can be found here and here.)

That said, a discussion of the amendment question should not eclipse continued reflection on the appeal and desirability of pursuing a strict bilingualism requirement. Such reflection must include a more satisfying consideration of the ways in which Indigenous legal traditions and languages should be accounted for in our understanding of the Court’s composition and the eligibility of appointees in Canada’s constitutional order. Such reflection also calls for a more robust analysis of how a French-English bilingualism requirement can be reconciled with needs to diversify the Supreme Court bench more generally.

Yes, They Can

Constitutional amendment with provincial consent is not required for electoral reform.

The federal government’s pursuit of electoral reform has raised a number of questions: is reform necessary or desirable at all? If so, what new electoral system to adopt? Should the people be consulted before reform is implemented? And now, thanks to op-eds published by Michael Pal in The Globe and Mail, and Yaakov and Jonathan Roth in The Toronto Star, we also have to ask ourselves whether it would be constitutional. In my view, however, the answer to the latter question is much clearer than to the others. The constitution is no obstacle to Parliament acting alone to implement (most forms of) electoral reform. (By the way, in case you think that my opinion on this is relevant to assessing the argument that follows: I think that electoral reform is a bad idea, and I think that if the government insists on endorsing it, there should be a referendum before reform is implemented.)

Section 44 of the Constitution Act, 1982 ― which prof. Pal describes as an “obscure provision,” and Messrs. Roth do not mention at all ― provides that “exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons, subject to sections 41 and 42. As a starting point, it would seem logical to consider electoral reform an amendment to “the Constitution of Canada in relation to … the House of Commons,” and thus within the purview of Parliament, except insofar as sections 41 and 42, to which I will return, provide otherwise.

Those who think unilateral electoral reform would be unconstitutional point to the Supreme Court’s opinion in Reference re Senate Reform, 2014 SCC 32, [2014] 1 S.C.R. 704, which introduced the notion of “constitutional architecture” that limits Parliament’s amending power under section 44. The “architecture,” which seems to consist of “assumptions that underlie the text [of the constitution] and the manner in which the constitutional provisions are intended to interact with one another,” is an entrenched part of the constitution, and cannot be amended by Parliament acting alone.

Prof. Pal suggests that the first-past-the-post electoral system is part of that architecture since, although it “is not mentioned directly in the Constitution, … [n]umerous parts of the Constitution presume that [it] is in place.” Moreover, in his view, electoral reform “would affect provincial interests,” although “[l]esser changes than a move to proportional representation could be interpreted as” doing so “only trivially … and not really changing the constitutional architecture.” For their part, Messrs. Roth insist that the Constitution Act, 1867 “expressly assigned to each province a fixed number of ‘electoral districts,’ each entitled to return ‘one member’ to the House. This ‘constitutional architecture’ plainly presupposes district-based elections.” They also point to the use of first-past-the-post in the United Kingdom, to whose constitution ours was intended, according to its preamble, to be “similar in principle.”

But it is not enough, it seems to me, to say that first-past-the-post is how we always elected representatives to show that it is a part of the “constitutional architecture” as the Supreme Court understood that notion in the Senate Reform Reference. In that opinion, the Court said that “the institutions provided for in the Constitution” ― such as the House of Commons ― “can be … changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact.” [48] That, in my view, is what electoral reform would do. It might change the House of Commons to some extent (though to what extent would depend on the shape the reform takes), but would not affect its “nature” as the representative part of our national legislature or its role of serving as the electoral college for the choice of a Prime Minister, making laws,  and pretending to hold government to account.

Prof. Pal never says, unfortunately, what parts of the constitution rely on first-past-the-post, and for my part, I am unable to figure out what they are. It is noteworthy, for instance, that section 3 of the Canadian Charter of Rights and Freedoms provides that “[e]very citizen of Canada has the right to vote in an election of members of the House of Commons” (emphasis mine), as opposed to, say, “the election of a member.” The latter formulation would presuppose election in single-member districts. The former does not, since an election under a system of proportional representation is still “an elections of members of the House of Commons.” As for the provisions assigning a specified number of districts to each province, which Messrs. Roth invoke, these were obviously intended to be, and have been, amended by Parliament acting alone since 1867, as the number of districts and members of Parliament was increased.

Note, by the way, that contrary to what Messrs. Roth say, one or two of the districts created by section 40 of the Constitution Act, 1867 were actually entitled to two representatives in the House of Commons. Indeed, multi-member districts were common in the United Kingdom in 1867 ― most English Members of Parliament represented counties or boroughs that returned two members each, and some counties had three representatives. There were even exceptions to the principle of geographical representation (as well as the one man, one vote principle), in the shape of university constituencies that allowed the holders of some degrees from some universities to elect additional representatives for their almae matres. Quite apart from the fact that the legal effect of the preamble to the Constitution Act, 1867 is matter of doubt on which the Supreme Court has wavered over the years, the claim that geographical constituencies electing single members of Parliament using a first-past-the-post system was a matter of long-standing fundamental constitutional principle in the United Kingdom in 1867 is historically inaccurate.

Thus I am not at all persuaded that the constitution’s entrenched text in any way depends on or implies the first-past-the-post voting system. If anything, I suspect ― though I have not done the historical research to prove it ― that section 3 of the Charter might have been written specifically to avoid entrenching this arrangement. Nor do I think that electoral reform would impermissibly affect the constitution’s architecture. While changes in the relationship between Parliament and the executive are conceivable in the wake of a move to some form of proportional representation, they are unlikely to be fundamental in nature. As for changes to the relationship between Parliament and the provinces, I do not understand how any could result ― except in the one case which is also ruled out by the constitutional text.

The exception to Parliament’s general ability to enact electoral reform under section 44 of the Constitution Act, 1982 concerns reform plans that would sever the relationship between members of Parliament and provinces from which they are elected ― in other words, those versions of proportional representation that would distribute seats on the basis of national, rather than provincial vote totals. The trouble for such systems lies in the entrenchment, in section 41(e) of the Constitution Act, 1982 of “the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province [was] entitled to be represented” in 1982, and in section 42(a), of “the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada” (emphasis mine in both cases). It is thus the provinces ― though not any territorial subdivisions within the provinces ― that form the basis of representation in the House of Commons, and that principle is indeed part not only of the constitution’s architecture, but of its very text.

Provided that it respects this principle, however, Parliament is constitutionally free to change voting arrangements by ordinary law enacted under section 44. Such changes would, no doubt, be of great political significance. But while that may be (I think it is) an important argument in favour of giving the people a say over electoral reform, it is not, in itself, a reason to consider that constitutional amendment with provincial consent is necessary to effect such changes. The Senate Reform Reference does not hold the contrary. The question of electoral reform’s constitutionality is, I believe, a distraction from those about its desirability and the process by which its desirability ought to be determined.

N’importe quoi

Les partis d’opposition à l’Assemblée nationale n’aiment pas le lieutenant-gouverneur du Québec. Peut-être pas personnellement, mais la fonction, qui, selon eux, ne devrait pas exister. Et la CAQ pense avoir trouvé une solution au problème que serait l’existence même de cette fonction dans notre ordre constitutionnel (j’expliquerai ci-dessous où exactement la CAQ a fait cette trouvaille) : puisqu’on ne veut pas de lieutenant-gouverneur, eh bien, il suffit de ne pas en nommer un lorsque le détenteur actuel du poste quittera ses fonctions. Or, tout comme l’approche du gouvernement de Stephen Harper (ainsi que du NDP de Thomas Mulcair) au « problème » du Sénat, qui consistait à ne pas nommer de sénateurs, cette « solution » est inconstitutionnelle, en plus d’être pernicieuse.

Il faut dire que non seulement le respect, mais même la connaissance de la constitution canadienne ne semblent pas être le fort de la CAQ. Sa proposition originale (disponible ici, à la p. 12) déclare qu’ «[u]n gouvernement de la Coalition Avenir Québec prônera l’abolition de la fonction de lieutenant-gouverneur. Il laissera en déshérence cette charge jusqu’à ce que […] cette fonction soit définitivement abolie » par un amendement constitutionnel. Or, il n’appartient pas à un gouvernement provincial de « laisser en déshérence » une charge dont le titulaire est nommé par le gouvernement fédéral, en vertu de l’art. 58 de la Loi constitutionnelle de 1867. Quelqu’un à la CAQ semble avoir fini par lire la Constitution, toutefois, puisque ― selon un article du Devoir paru aujourd’hui ― il s’agit désormais de « convaincre Ottawa de ne plus nommer de représentant de la Couronne à Québec ».

Mais il y a plus. Dans l’explication qui accompagne sa proposition, la CAQ prétend citer la Loi constitutionnelle de 1867, plus précisément l’ « article 67 amendé » de celle-ci. Or, si l’article 67 est bien, comme la CAQ l’affirme, la disposition qui permet au gouvernement fédéral de nommer « un administrateur » qui peut exercer les fonctions du lieutenant-gouverneur lorsque celui-ci ne peut le faire, cet article n’a jamais fait l’objet d’un amendement, et le texte cité par la CAQ n’est pas celui qui figure dans la Loi constitutionnelle. La CAQ y va ensuite de l’affirmation suivante:

La «suppléance» de l’administrateur de la province vise en principe à pallier une situation temporaire. Rien n’empêche cependant que cette suppléance se prolonge indéfiniment, en particulier, suivant l’alinéa de l’article 67 amendé de la constitution canadienne, «lorsque le suppléant est une personne expressément nommée à l’avance en cette qualité.» (Statuts révisés du Canada, janv. 1991).

Encore une fois, le texte cité n’est pas celui de l’article 67. En fait, tout ce paragraphe ― et l’idée même de la proposition de la CAQ, y compris le mot « déshérence » ― semblent tout droit tirés d’un texte intitulé « Une solution pragmatique à la fonction de lieutenant-gouverneur », publié à une date incertaine, mais apparemment avant 2012, par Gilles Laporte, un professeur d’histoire au CÉGEP du Vieux-Montréal. La CAQ ne le mentionne pas, ce qui fait drôlement ressembler sa position à du plagiat. (Quant à la source dont M. Laporte a tiré ses opinions constitutionnelles non-orthodoxes, il pourrait s’agir d’une page web du Ministère de la justice fédéral consacrée à la rédaction de textes législatifs en français, où le même langage apparaît. D’où vient-il? Mystère, pour moi… )

Bref, les affirmations de la CAQ ne tiennent pas la route. Supposons, cependant, qu’un hypothétique gouvernement caquiste propose à son homologue fédéral de collaborer à son projet. Que devrait répondre le gouvernement fédéral?

Tout d’abord, que ne pas nommer de lieutenant-gouverneur est tout simplement inconstitutionnel. L’article 58 de la Loi constitutionnelle de 1867 exige qu’il y ait un lieutenant-gouverneur (le texte anglais, seul officiel d’ailleurs, est encore plus clair à cet effet que la version française: « For each Province there shall be an Officer, styled the Lieutenant Governor […] ». Tout comme M. Harper agissait en flagrante violation de la constitution en refusant de nommer des sénateurs, malgré l’exigence claire du texte constitutionnel à cet effet, un gouvernement fédéral enfreindrait la constitution en se laissant convaincre par la proposition de la CAQ.

Par ailleurs, M. Laporte fait, dans son texte, un parallèle révélateur entre sa proposition et la nomination de sénateurs élus dans des élections provinciales. Or, dans le Renvoi relatif à la réforme du Sénat, 2014 CSC 21, [2014] 1 R.C.S. 704, la Cour suprême s’est dite d’avis que la transformation du Sénat en organe élu qui résulterait de la généralisation de cette pratique serait une modification de l’ « architecture » de la constitution, et ne pourrait se faire que par un amendement constitutionnel. De la même façon, l’abolition détournée de la charge du lieutenant-gouverneur, que vise ouvertement la proposition de la CAQ, est un amendement constitutionnel, qui ne pourrait être adopté qu’en suivant la procédure appropriée (en l’occurrence, celle prévue par le paragraphe 41(a) de la Loi constitutionnelle de 1982).

Par ailleurs, le gouvernement fédéral pourrait ajouter que, même sans égard à son inconstitutionnalité, la proposition de la CAQ est une bien mauvaise idée. L’ « administrateur » qui remplace le lieutenant-gouverneur du Québec pendant son absence est un juge de la Cour d’appel. Qu’un juge puisse exercer temporairement des fonctions vice-royales qui ne sont aucunement discrétionnaires ne pose pas de problème. Cependant, toutes les fonctions d’un lieutenant-gouverneur ne sont pas de cette nature. Le représentant de la Reine peut être appelé à exercer un jugement indépendant, notamment lorsqu’il s’agit de décider à qui confier la formation d’un gouvernement dans une situation où aucun parti n’a de majorité à l’Assemblée nationale. Un tel jugement est aussi, bien entendu, susceptible d’être controversé et critiqué sur le plan politique. Placer un juge dans l’obligation de porter un tel jugement, c’est compromettre son indépendance et l’exposer à des critiques n’ayant strictement rien à voir avec sa fonction première.

J’ai déjà écrit que la décision de M. Harper et l’intention de M. Mulcair témoignaient d’une désobéissance flagrante à la constitution et d’un mépris profond pour la primauté du droit. Si j’hésite à qualifier la position de la CAQ de la même manière, c’est uniquement parce que son ignorance de la constitution semble si profonde qu’on ne saurait l’accuser de chercher à y désobéir sciemment. Mais à défaut d’être une forme perverse de désobéissance civile prônée par un parti qui aspire à gouverner le Québec, et donc à y faire respecter la loi et l’ordre, c’est tout simplement du n’importe quoi.


I have a new post at the CBA National Magazine’s blog, which follows up on my posts (here and here) arguing that the Suprme Court’s recent decisions constitutionalizing a right to collective bargaining and a right to strike were bad mistakes. In National Magazine post, I review the various ways in which these mistakes might be corrected or mitigated: invoking the notwithstanding clause, re-litigating the issue, and constitutional amendment. I argue that the notwithstanding clause, despite being quick and easy fix, should not be resorted to. The other solutions should be attempted, despite their difficulty and uncertainty.

Challenging Succession, Round 2

Yesterday, in Teskey v. Canada (Attorney General), 2014 ONCA 612, the Court of Appeal for Ontario rejected a Charter challenge to the Succession to the Throne Act, 2013, a law that purports to “assent[] to” the changes to the rules of royal succession laid out in a British bill (and agreed to by the heads of government of the Commonwealth). This decision upholds the one issued by the Superior Court of Justice last year, about which I wrote here. In my view, like that decision, that of the Court of Appeal may well reach the correct outcome, although its reasoning is deeply flawed. And to the extent that it is correct, it only strengthens a different challenge to the Succession to the Throne Act.

The appellant, who represented himself (as he had done at first instance), argued that the continued exclusion of Catholics from the line of succession, which the Succession to Throne Act does nothing to address, infringes the equality rights guaranteed by the Charter. But, like the Superior Court, the Court of Appeal concludes that the case

does not raise justiciable issues and that Mr. Teskey lack[s] standing to bring the application. The rules of succession are a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter, and Mr. Teskey does not have any personal interest in the issue raised (other than being a member of the Roman Catholic faith) and does not meet the test for public interest standing.

I agree with the Court on the matter of standing. Even under the relaxed public interest standing test, a claimant’s capacity to develop his argument in a manner that will be helpful to the court is a relevant consideration, and it’s not clear that Mr. Teskey had such a capacity; nor is it clear, as the Court says, what his interest in the issue is.

However, there are several problems with the Court’s reasoning. One is that, assuming that the Succession to the Throne Act is not subject to the Charter because succession rules “are incorporated into [the Constitution] and therefore cannot be trumped” by it, this is not a matter of “justiciability.” As I explain in my post on the decision at first instance,

[j]usticiability is a slippery concept, but it has to do with a court’s ability to answer the sort of question at issue in a case. The question here is the constitutionality of an Act of Parliament ― something the courts deal with all the time. Even if the Charter does not apply to that Act of Parliament, that does not mean that its constitutionality could not be called into question in a judicial proceeding, albeit on a different basis.

An issue that does go to justiciability, at least in a broad sense, is whether the Court can address a constitutional challenge to a statute which has not even been proclaimed into force. I’m not aware of any such case, and I have serious doubts about a court’s power to entertain such a challenge ― but here, the Court of Appeal does not even raise this question.

And then, there is the matter of the grounds for the Court’s assertion that the rules of succession are a part of the Constitution. The Court doesn’t explain why this is so ― yet these rules are certainly not an explicit part of any enactment which s. 52 of the Constitution Act, 1982 lists as being part of the Constitution.

The Court’s assertion is, however, probably correct because, I wrote last year, the “office of the Queen” entrenched by par. 41(a) of the Constitution Act, 1982, “arguably includes the rules on who can come to hold that office from time to time, at least in a case where, like with the monarchy, these rules are, arguably again, its defining characteristic.” Since then, the Supreme Court has held, in L’affaire Nadon, that the “composition” of the Supreme Court (entrenched by a different paragraph of s. 41) includes the eligibility criteria for judges, a conclusion which I think suggests (although probably does not require) that the phrase “the office of the Queen” should also be interpreted to include eligibility criteria.

But if the rules of succession to the throne are indeed “a part of the fabric of the constitution of Canada and incorporated into it and therefore cannot be trumped or amended by the Charter,” it follows that, a fortiori, they cannot be amended by an ordinary act of parliament, such as the Succession to the Throne Act. If they are part of the constitution, they must be changed by a constitutional amendment. If I am right that they are part of the constitution by virtue of par. 41(a) of the Constitution Act, 1982, this amendment requires the unanimous consent of the provinces. I take it that Mr. Teskey did not make this argument, and that the Court could therefore not consider it, but it is at the heart of a challenge launched by a group of constitutional law professors in Québec. Like the Superior Court before it, the Court of Appeal has given that challenge additional ammunition. When it is finally heard ― not before next summer, apparently ― it will become clear that, just like with its Senate reform project, and the appointment of Justice Nadon, the federal government chose to take a shortcut to avoid formal constitutional amendment ― and has ended up violating the constitution.

Strange Property

Last week, a Conservative Member of Parliament proposed a constitutional amendment that would protect (some) property rights in Alberta. The amendment would add a section to the Canadian Charter of Rights and Freedoms, providing that

In Alberta, everyone has the right not to be deprived, by any Act of the Legislative Assembly, or by any action taken under authority of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property, or of any right attached to real property, or of any improvement made to or upon real property, unless made whole by means of full, just and timely financial compensation.

In the last Parliament, identically worded amendments were proposed for Ontario and British Columbia. Emmett Macfarlane has blogged about Mr. Hillyer’s proposal, explaining the uncertainty about the amending formula that would have to be used to add this provision to the Charter and suggesting that

 it would seem undesirable to have a patchwork of different rights in different provinces across the country. The Charter project itself was intended as a national unity project. If we started adding different, province-specific rights, what might that do to our conceptions of Canadian citizenship?

However, as prof. Macfarlane points out, s. 16.1 of the Charter is a province-specific provision, applicable only in New Brunswick; so is subs. 16(2), while pursuant to s. 59 of the Constitution Act, 1982, par. 23(1)(a) of the Charter does not (yet?) apply in Québec. The Constitution Act, 1867 also has some asymmetrical rights-protecting provisions (notably paragraphs 93(1)-93(4) and section 133). Differences between provinces, which we might call horizontal asymmetries, are already a feature of the rights landscape in Canada (quite apart from provincial rights-protecting legislation, such as Québec’s Charter of Human Rights and Freedoms) ― which is not to say that it is a good idea to add to them.

Mr. Hillyer’s proposed amendment would create an asymmetry of another (and, if anything, more unusual) sort too, a vertical one, between the rights protected against the federal Parliament and a provincial legislature. The Charter generally protects rights equally against Parliament and provincial legislatures. The only exception again concerns language rights, which are only protected against Parliament (and the province of New Brunswick). I’m not sure there is any strong normative principle that would go against vertically asymmetrical rights protection, but thought the matter worth highlighting.

Mostly though, I want to raise some questions about the substance of the proposed amendment. You might think that, having lamented the absence of constitutional protections for property rights and economic liberty in Canada (most recently last week, here and here), I would be happy about an attempt to include property rights in the Charter. But I’m not happy about the way Mr. Hillyer’s proposal (and its predecessors) would do it.

The proposed amendment is very narrow: it would only protect real property from expropriation without compensation. In other words, while landowners would be assured of an indemnity for any interference with their property, those whose fortune, great or small, consists in property of other kinds (whether it is money in the bank, shares, or intellectual property rights) could be expropriated without compensation of any sort. This sort of protection for property rights would tend to benefit the well-off, while doing nothing at all for those to poor to own land, such as the offenders made to pay an arbitrary “victim surcharge” on top of other punishment imposed on them. Indeed, the proposed amendment would not even protect all the owners of real property equally. It does not limit the reasons for which property can be taken by the government, provided that compensation is paid. It allows, for instance, expropriations intended to transfer land to private developers, which ― at least in the United States ― tend to fall much more heavily on the poor than the well-off.

Property rights, and economic rights more generally, became the poor relation of Canadian constitutional law (and to a lesser extent even of the American constitutional law) in large part because of the perception that they were being or would be used to protect the rich and to prevent the state from helping the poor. I have been arguing that this perception is mistaken, and that we could help the marginalized members of society resist the encroachments of a state that typically serves the interests of the middle and upper classes by protecting their economic rights. Mr. Hillyer’s proposed property rights amendment would not do that. On the contrary, it would confirm the fears of those who resist the protection of economic rights, and thus set back the cause of inclusion and economic liberty for all.

A further important point here is that constitutional change ― whether it is Senate reform or the addition of a new right to the Charter ― deserves to be broadly debated, so that its implications can be worked out and understood. The 7/50 amending formula, for all its flaws, more or less guarantees that amendment will not happen without debate. Attempts at constitutional change through the path of least resistance, whether unilateral Senate reform or a province-by-province modification of the Charter risks being poorly thought through (quite apart from its other defects from the standpoints of constitutional law and/or political morality) because it is insufficiently debated. It is not a good idea.

H/T: Benjamin Oliphant